Repatriation Commission v McDermid

Case [2016] FCAFC 179

FEDERAL COURT OF AUSTRALIA

Repatriation Commission v McDermid [2016] FCAFC 179

Appeal from: McDermid v Repatriation Commission [2016] FCA 372, (2016) 150 ALD 55
File number: QUD 341 of 2016
Judges: KENNY, FLICK AND RANGIAH JJ
Date of judgment: 14 December 2016
Catchwords:

VETERANS’ ENTITLEMENT – compensation payable for incapacity in respect of spine condition – pension also sought under Veterans’ Entitlements Act – claimed incapacity from same condition – reduction of pension by reason of compensation already being received

STATUTORY INTERPRETATION – natural and ordinary meaning of words – no ambiguity 

Legislation:

Compensation (Commonwealth Government Employees) Act1971 (Cth)

Safety, Rehabilitation and Compensation Act1988 (Cth)

Veterans’ Entitlements Act 1986 (Cth), ss 5D(2), 13, 13(1)(b), 19, 19(7), 21A, 22, 71(3), 72, 73, 74, 74(2), 74(2)(a), 74(2)(b), 75, 76, 77, 78, 79

Cases cited:

Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292

Canute v Comcare [2006] HCA 47, (2008) 226 CLR 535

Commonwealth v Smith [2009] FCAFC 175, (2009) 180 FCR 569

McDermid v Repatriation Commission [2016] FCA 372, (2016) 150 ALD 55

Owen v Repatriation Commission (1995) 59 FCR 93

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, (1998) 194 CLR 355

Woodside Energy Ltd v Zaghloul [2015] FCAFC 135

Date of hearing: 22 November 2016
Registry: Queensland
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 26
Counsel for the Appellant: Mr T Howe QC with Ms R Henderson
Solicitor for the Appellant: Australian Government Solicitor
Counsel for the Respondent: Mr R Derrington QC with Mr A Harding
Solicitor for the Respondent: Woods Prince Lawyers

ORDERS

QUD 341 of 2016
BETWEEN:

REPATRIATION COMMISSION

Appellant
AND:

WILLIAM JOHN MCDERMID

Respondent

JUDGES:

KENNY, FLICK AND RANGIAH JJ

DATE OF ORDER:

14 DECEMBER 2016

THE COURT ORDERS THAT:

1.No later than 2:15 pm on Friday 16 December 2016, the Appellant, having conferred with the Respondent, file an agreed minute of proposed orders to give effect to the reasons for judgment delivered on Wednesday 14 December 2016.

2.In the event that the parties disagree about the proposed orders, each party file short submissions (limited to 3 pages) no later than 2:15 pm on Friday 16 December 2016 in support of the orders that party proposes, together with a minute of proposed orders.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

THE COURT:

  1. Mr William McDermid was a member of the Royal Australian Navy from 1965 to 1985.

  2. During the course of his service he suffered a number of injuries for which he claimed compensation.  For present purposes, it has been accepted that:

    ·one of those injuries, a lumbar spine condition, was accepted in 1984 as compensable under the Compensation (Commonwealth Government Employees) Act1971 (Cth) and that compensation remained payable under the Safety, Rehabilitation and Compensation Act1988 (Cth) (the “Compensation Act”);

    ·the incapacity from that…

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Repatriation Commission v McDermid [2016] FCAFC 179
Case
[2016] FCAFC 179
Decision Date

CaseChat Overview and Summary

The case of Repatriation Commission v McDermid involved a dispute between the Repatriation Commission and Mr McDermid regarding the amount of compensation and pension that Mr McDermid was entitled to receive for his spine condition. Mr McDermid sought compensation under the Veterans’ Entitlements Act and also claimed a pension under the same act for the same condition. The dispute centred on whether the compensation Mr McDermid received should be deducted from the pension he was entitled to receive.

The legal issues before the court were whether the statutory phrase “that injury” in s 74(2)(b) of the Veterans’ Entitlements Act should be construed to mean “that injury alone” or “that injury to the exclusion of other injuries” for which a pension may also be payable. The court was also required to decide whether there was any ambiguity in the relevant statutory provisions that would necessitate a contrary construction of s 74(2).

The court held that the natural and ordinary meaning of the words in s 74(2)(b) conveyed that there was no need to “read words into” the statutory provision. The court noted that any contrary construction would only serve to endorse “double dipping” by Mr McDermid, who would receive both the compensation and the pension without any reduction in the pension amount. The court concluded that there was no ambiguity in the relevant statutory provisions and that the ordinary meaning of the language of the provisions in the context of the statute as a whole should be applied.

The court allowed the appeal and set aside the costs order made against the Repatriation Commission at first instance. The court ordered that the parties confer and file an agreed minute of proposed orders to give effect to the reasons for judgment. In the event that the parties disagreed about the proposed orders, each party was to file short submissions in support of the orders they proposed, together with a minute of proposed orders.

Orders

Orders of the court

1. No later than 2:15 pm on Friday 16 December 2016, the Appellant, having conferred with the Respondent, file an agreed minute of proposed orders to give effect to the reasons for judgment delivered on Wednesday 14 December 2016.

2. In the event that the parties disagree about the proposed orders, each party file short submissions (limited to 3 pages) no later than 2:15 pm on Friday 16 December 2016 in support of the orders that party proposes, together with a minute of proposed orders.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Any contrary construction of s 74(2)(b), as it then stood, requires the statutory phrase “that injury” to be construed as meaning (for example) “that injury alone” or “that injury to the exclusion of other injuries” for which a pension may also be payable. It is to be accepted that words are not to be “read into” a statutory provision unless there is a clear need to do so: cf. Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292 at 302 per McHugh JA. Given the “architecture” of the Veterans’ Entitlements Act, there is no clear need to either “read words into” s 74(2), or to construe s 74(2) other than in the manner that the natural and ordinary meaning of those words convey. Indeed, the contrary construction of the primary Judge and as urged upon this Court by Senior Counsel for Mr McDermid would only be to endorse “double dipping” — with Mr McDermid receiving the entirety of the compensation payable under the Compensation Act and the pension payable under the Veterans’ Entitlements Act free of any reduction in quantum. CONCLUSIONS In these circumstances, it is unnecessary to consider the further submissions made by Senior Counsel for the Commission concerning the principles to be applied in resolving statutory ambiguity. As set out above, this Court does not discern any relevant ambiguity. It is unnecessary to refer to s 23(b) of the Acts Interpretation Act 1901 (Cth), which does not operate to displace the ordinary meaning of the language of the relevant statutory provisions in the context of the statute as a whole. Nor is it helpful to discuss s 74(2) as amended by the Veterans’ Entitlements Amendment Act 2011 (Cth), the history of which was referred to by the learned primary Judge: see McDermid [2016] FCA 372 at [62] to [64], (2016) 150 ALD 55 at 71 to 72. There was, of course, no appeal from that part of his Honour’s judgment that concerned the operation of the Veterans’ Entitlement Act as amended on and from 15 September 2011. The appeal should be allowed. Senior Counsel for the Commission accepted that in the event that the Commission met with success on appeal it did not seek either its costs at first instance or its costs on appeal. But it sought an order that the costs order made against it at first instance should be set aside. That approach was endorsed by Senior Counsel for Mr McDermid.THE ORDERS OF THE COURT ARE:1.No later than 2:15 pm on Friday 16 December 2016, the Appellant, having conferred with the Respondent, file an agreed minute of proposed orders to give effect to the reasons for judgment delivered on Wednesday 14 December 2016.2.In the event that the parties disagree about the proposed orders, each party file short submissions (limited to 3 pages) no later than 2:15 pm on Friday 16 December 2016 in support of the orders that party proposes, together with a minute of proposed orders.

Ratio Decidendi

Legal Principle Established

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