Return to Work Corporation of South Australia v Agnew

[2020] SASCFC 79

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA v AGNEW

[2020] SASCFC 79

Judgment of The Full Court

(The Honourable Justice Peek, The Honourable Justice Stanley and The Honourable Justice Nicholson)

28 August 2020

WORKERS' COMPENSATION - ASSESSMENT AND AMOUNT OF COMPENSATION - ENTITLEMENTS REDEEMED OR COMMUTED TO A LUMP SUM - EFFECT OF LEGISLATIVE CHANGES

WORKERS' COMPENSATION - ASSESSMENT AND AMOUNT OF COMPENSATION - AMOUNT OF COMPENSATION IN CASE OF DEATH - GENERALLY

STATUTES - ACTS OF PARLIAMENT - REPEAL - SAVINGS AND TRANSITIONAL CLAUSES WITHIN REPEALING ACT

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - GENERAL MATTER DOES NOT DEROGATE FROM SPECIAL MATTER - APPLICATION TO PROVISIONS WITHIN SAME ACT

On 19 May 2012 the respondent’s husband died as a result of a work injury.  At the time of his death the respondent and her husband were separated but still married.  The respondent was not financially dependent on her husband as at the date of his death. 

As at 19 May 2012 the Workers Rehabilitation and Compensation Act 1986 (SA) (WRC Act) was in operation. Section 45A of the WRC Act made provision for the payment of compensation in the form of a lump sum to dependent partners and children of workers who died as a result of a compensable injury. The respondent did not make a claim for lump sum compensation in respect of her husband’s death pursuant to s 45A of the WRC Act.

On 1 July 2015 the Return to Work Act 2014 (SA) (RTW Act) commenced operation. The RTW Act repealed the WRC Act. Section 61 of the RTW Act makes provision for the payment of compensation in the form of a lump sum to, inter alia, the “partner” of worker who dies as a result of a work injury. Unlike s 45A of the WRC Act, s 61 of the RTW Act does not condition an entitlement to lump sum compensation to a deceased worker’s partner on that partner having been wholly or partially dependent upon the earnings of the deceased worker at the time of his or her death.

The respondent was the worker’s spouse at the time of his death, and accordingly if s 61 applies she was his partner for the purpose of that section.

On 16 March 2016 the respondent made a claim for compensation under s 61 of the RTW Act. The appellant rejected that claim on the basis that the transitional provisions in clause 45 of Schedule 9 of the RTW Act excluded the making of such claims by the partner of a worker who had died as a result of a work injury that had occurred between 1 July 2008 and 1 July 2015. The respondent made an application to review that decision.

Subsequently, a single member of the South Australian Employment Tribunal (SAET) referred the following question of law to the Full Bench: 

Is the applicant’s claim barred by the operation of the transitional provisions in Part 10 of Schedule 9 of the Return to Work Act 2014, and in particular by clause 45 thereof?

The Full Bench answered the question in the negative, effectively holding that the respondent is entitled to lump sum compensation in respect of the death of her husband pursuant to s 61 of the RTW Act.

The appellant disputes that decision, contending instead that the respondent is entitled to make an application pursuant to clause 45(1) of Schedule 9 of the RTW Act. The respondent contends the Full Bench answered the question correctly. The Full Court of this Court granted permission to appeal on 23 September 2019.

Held per Stanley J (Peek and Nicholson JJ agreeing):

1. The construction adopted by the Full Bench of clause 45(1) is too narrow. The availability of a right to seek an ex gratia payment under clause 45 evinces an intention to exclude such claims being brought under clause 29(1)(a).

2.  The answer given by the Full Bench to the question of law referred is set aside and the question answered “Yes”.

3.  The respondent’s application for review is dismissed.

Return to Work Act 2014 (SA) s 3, s 61, Sch 9 cl 29, cl 45, cl 50; Workers Rehabilitation and Compensation Act 1986 (SA) s 45A, referred to.
Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378, applied.
Carr v Western Australia (2007) 232 CLR 138; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, discussed.
Bull v The Attorney-General for New South Wales (1913) 17 CLR 370; Bird v The Commonwealth of Australia (1988) 165 CLR 1; R v Kirby; ex parte Boilermakers' Society of Australia (1956) 94 CLR 254; Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130, considered.

RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA v AGNEW
[2020] SASCFC 79

Full Court:  Peek, Stanley and Nicholson JJ

1. PEEK J:  I agree with the orders proposed by Stanley J and with his reasons.

   STANLEY J:

   Introduction

2. This is an appeal from a decision of the Full Bench of the South Australian Employment Court on a referral of a question of law.

3. The appeal gives rise to a question of construction. It particularly concerns the operation of the transitional provisions in Part 10 of Schedule 9 of the Return to Work Act 2014 (SA) (RTW Act) in relation to death claims.

4. The respondent was married to the worker who died in compensable circumstances when the Workers Rehabilitation and Compensation Act 1986 (SA) (WRC Act) was in operation. She subsequently made a claim for lump sum compensation under s 61 of the RTW Act. The appellant rejected her claim. The respondent made an application to review that decision.

5. A single member of the South Australian Employment Tribunal (SAET) referred the following question of law to the Full Bench: 

   Is the applicant’s claim barred by the operation of the transitional provisions in Part 10 of Schedule 9 of the Return to Work Act 2014, and in particular by clause 45 thereof?

6. The Full Bench answered the question in the negative.[1] 

   [1]    Agnew v Return to Work SA [2018] SAET 209.

7. The appeal is brought by way of permission granted by the Full Court of this Court. 

   Factual background

8. On 19 May 2012 the respondent’s husband died as a result of a work injury.  At the time of his death the respondent and her husband were separated but still married.  The respondent was not financially dependent on her husband as at the date of his death. 

9. As at 19 May 2012 the WRC Act was in operation. Section 45A of the WRC Act made provision for the payment of compensation in the form of a lump sum to partners, children and other dependents of workers who died as a result of a compensable injury. However, compensation pursuant to s 45A was payable to the partner of the deceased worker only if he or she was a “dependent partner” or “partially dependent partner” as defined in that section.

10. Unsurprisingly, in those circumstances the respondent did not make a claim for lump sum compensation in respect of her husband’s death pursuant to s 45A of the WRC Act. However, she did bring claims on behalf of her husband’s children.

11. On 1 July 2015 the RTW Act commenced operation.[2]  The RTW Act repealed the WRC Act.[3] 

    [2] Pursuant to s 2(2) of the RTW Act Part 8 of Schedule 9 was deemed to have come into operation on 1 July 2013. Part 8 of Schedule 9 is irrelevant to this appeal.

    [3]    Return to Work Act 2014 (SA) Sch 9 cl 2.

12. Section 61 of the RTW Act makes provision for the payment of compensation in the form of a lump sum to a child or partner of a worker who dies as a result of a work injury. “Partner” is defined to mean “a spouse or domestic partner”. Section 4(1) of the RTW Act defines a person as being the spouse of another if they are legally married. Unlike s 45A of the WRC Act, s 61 of the RTW Act does not condition an entitlement to lump sum compensation to a deceased worker’s partner on that partner having been wholly or partially dependent upon the earnings of the deceased worker at the time of his or her death.

13. Section 61 of the RTW Act provides:

    (1) In this section—

    child means a person who—

    (a)     is under the age of 18 years; or

    (b)     is a full-time student at an educational institution approved by the Corporation for the purposes of this paragraph and is under the age of 26 years; or

    (c)     is, by reason of disability, incapable of earning a living;

    disability means any physical, mental or intellectual disability;

    partner means a spouse or domestic partner;

    prescribed sum means the prescribed sum applying under Division 7 (as at the time of the occurrence of the work injury that resulted in the death of the relevant worker) but less any amount paid to the relevant worker under Division 7, or a corresponding previous enactment.

    (2) Subject to this Act, if a worker dies as a result of a work injury, compensation in the form of a lump sum is payable in accordance with this section.

    (3) If the worker leaves a partner or partners, and no child, the amount of compensation is an amount equal to the prescribed sum payable to the partner or, if there is more than 1 partner, an amount payable to each partner determined by dividing the prescribed sum into equal shares.

    (4) If the worker leaves no partner and a child or children, the amount of compensation is an amount equal to the prescribed sum payable to the child or, if there is more than 1 child, an amount payable to each child determined by dividing the prescribed sum into equal shares.

    (5) If the worker leaves a partner, or partners, and 1 (and only 1) child, the amount of compensation is—

    (a)     an amount equal to 90% of the prescribed sum payable to the partner or, if more than 1, an amount payable to each partner determined by dividing 90% of the prescribed sum into equal shares; and

    (b)     an amount equal to 10% of the prescribed sum payable to the child.

    (6) If the worker leaves a partner, or partners, and more than 1 and not more than 5 children, the amount of compensation is an amount equal to the prescribed sum payable in the following shares:

    (a)     an amount equal to 5% of the prescribed sum payable to each child;

    (b)     the balance to the partner or, if more than 1, an amount payable to each partner determined by dividing the balance into equal shares.

    (7) If the worker leaves a partner, or partners, and more than 5 children, the amount of compensation is an amount equal to the prescribed sum payable in the following shares:

    (a)     an amount equal to 75% of the prescribed sum payable to the partner or, if more than 1, an amount payable to each partner determined by dividing 75% of the prescribed sum into equal shares;

    (b)     an amount equal to 25% of the prescribed sum payable to the children in equal shares.

    (8) If the worker does not leave any partner or child but leaves a person who is to any extent dependent on the worker's earnings, the Corporation may, if it considers that it is justified in the circumstances, pay compensation not exceeding the prescribed sum that the Corporation considers is reasonable and appropriate to the loss to that person (and if the Corporation decides to make a payment of compensation to more than 1 person under this subsection then the sums paid must not in total exceed the prescribed sum).

    (9) If the worker, being under the age of 21 years at the time of the work injury, leaves no partner and no child but, immediately before the injury, was contributing to the maintenance of the home of the members of his or her family, the members of his or her family are taken to be dependent on the worker's earnings for the purposes of subsection (8).

    (10) If a person who is entitled to a payment under this section is under the age of 18 years, the payment may, if the Corporation so determines, be made wholly or in part to a guardian or trustee for the benefit of that person.

    (11) A claimant is entitled to interest at the prescribed rate on an amount of compensation payable under this section in respect of the period beginning on the date the claim for compensation was lodged in accordance with this Act and ending on the date of the payment.

14. The respondent was the worker’s spouse at the time of his death, and accordingly if s 61 applies she was his partner for the purpose of that section.

15. The RTW Act commenced operation on 1 July 2015. On 16 March 2016 the respondent made a claim for compensation under s 61 of the RTW Act. The appellant rejected that claim on the basis that the transitional provisions in clause 45 of Schedule 9 of the RTW Act excluded the making of such claims by the partner of a worker who had died as a result of a work injury that had occurred between 1 July 2008 and 1 July 2015.

16. In answering the question of law referred to it, the Full Bench effectively held that the respondent is entitled to lump sum compensation in respect of the death of her husband pursuant to s 61 of the RTW Act.

17. A particular feature of the respondent’s claim is that in 2012 she made an application pursuant to s 45A of the WRC Act on behalf of each of the worker’s two children and his stepson. However, as I have noted, the respondent did not make a claim under s 45A on her own behalf. It is common ground that had she done so, that claim would have failed as she was not financially dependent upon the worker as at the date of his death.

18. Importantly, the claims the respondent brought on behalf of her children proceeded on the basis that she was not a “dependent spouse” and was therefore not eligible for any payment pursuant to s 45A of the WRC Act. Consequently, in accordance with s 45A(10) both of the two children of the worker and the respondent received lump sum payments amounting to 10 per cent of the “prescribed sum”. Had the respondent been a dependent spouse, each of the children would only have been entitled to a lump sum payment of five per cent of the prescribed sum, pursuant to s 45A(8) of the WRC Act.

19. The appellant contends that the respondent is not entitled to compensation pursuant to s 61 of the RTW Act but is entitled to make an application pursuant to clause 45(1) of Schedule 9 of the RTW Act.

20. Whether the respondent has an entitlement to compensation pursuant to s 61 of the RTW Act falls to be determined by reference to the transitional provisions in Part 10 of Schedule 9 to the RTW Act.

    The transitional provisions

21. Clause 29 of Schedule 9 provides:

    (1) Subject to the other provisions of this Part, this Act applies to and in relation to—

    (a)     an injury that is attributable to a trauma that occurred before the designated day and that is a compensable injury under the repealed Act (an existing injury); and

    (b)     an injury that is attributable to a trauma that occurred on or after the designated day (a new injury).

    (2) For the purposes of subclause (1), an injury that is partially attributable to a trauma that occurred before the designated day and partially attributable to a trauma that occurred on or after the designated day will be taken to be a new injury within the ambit of subclause (1)(b).

    (3) Subject to the other provisions of this Part—

    (a)     a reference in this Act to a work injury will be taken to include a reference to a compensable injury under the repealed Act; and

    (b)     this Act will apply to a compensable injury under the repealed Act as if this Act had been in operation before the injury occurred.

    (4) Nothing in this Part is intended to give rise to an entitlement under this Act and the repealed Act so as to give rise to double entitlements.

22. Clause 45 of Schedule 9 provides:

    (1) The Corporation may, in relation to the death of a worker occurring on or after 1 July 2008 and before the designated day, in its absolute discretion, on the application of a person who was the spouse or domestic partner of the worker at the time of death, make an ex gratia payment (of an amount determined by the Corporation) after taking into account the amount (or additional amount) that would have been payable under section 61 of this Act had this Act been in operation before that trauma.

    (2) The Corporation may make a payment under subclause (1) even if an amount has been paid under section 45A of the repealed Act in relation to the death of the worker (including an amount equal to the prescribed sum under that section).

    (3) The Corporation may, in relation to the death of a worker that is subject to a claim for compensation under section 45A of the repealed Act that has not been determined before the designated day (including by the resolution of any dispute by proceedings under the repealed Act), deal with the claim in all respects under section 61 of this Act.

    (4) A decision of the Corporation not to make a payment under subclause (1) (or the amount of any such payment) is not reviewable under this Act (or under the repealed Act).

23. The “designated day” for the purposes of the RTW Act is 1 July 2015. 

24. The significance of the period 1 July 2008 to 1 July 2015 is that, during that period, s 45A of the WRC Act provided for the payment of a lump sum to a partner of a deceased worker only if the partner was dependent upon the earnings of the worker. Prior to 1 July 2008, s 44(1)(b) of the WRC Act had provided for the payment of compensation to the spouse or domestic partner of a deceased worker, irrespective of whether the spouse or domestic partner was dependent on the earnings of the worker.

25. The issue is one of statutory construction.  The principles of statutory construction are helpfully analysed in the joint reasons of French CJ and Hayne JJ in Certain Lloyd’s Underwriters v Cross in the following terms:[4]

    [4] [2012] HCA 56 at [23]-[26], (2012) 248 CLR 378 at 388-390.

    It is as well to begin consideration of this issue by re-stating some basic principles. It is convenient to do that by reference to the reasons of the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue:

    “This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.” 

    The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, “[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute” (emphasis added). That is, statutory construction requires deciding what is the legal meaning of the relevant provision “by reference to the language of the instrument viewed as a whole”, and “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”.

    Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure.   Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted. It is important in this respect, as in others, to recognise that to speak of legislative “intention” is to use a metaphor. Use of that metaphor must not mislead.  “[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have” (emphasis added). And as the plurality went on to say in Project Blue Sky:

    “Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.”

    To similar effect, the majority in Lacey v Attorney-General (Qld) said:

    “Ascertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts.”

    (Footnote omitted.)  The search for legal meaning involves application of the processes of statutory construction. The identification of statutory purpose and legislative intention is the product of those processes, not the discovery of some subjective purpose or intention.

    A second and not unrelated danger that must be avoided in identifying a statute’s purpose is the making of some a priori assumption about its purpose. The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions. As Spigelman CJ, writing extra-curially, correctly said:

    “Real issues of judicial legitimacy can be raised by judges determining the purpose or purposes of Parliamentary legislation. It is all too easy for the identification of purpose to be driven by what the particular judge regards as the desirable result in a specific case.”

    (Emphasis added.)  And as the plurality said in Australian Education Union v Department of Education and Children’s Services:

    “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.” (Footnote omitted.)

    [citations omitted]

1. In identifying purpose it is important to bear in mind the admonition of Gleeson CJ in Carr v Western Australia:[5]

   In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not promote that purpose or object … That general rule of interpretation, however, may be of little assistance where a statutory provision strikes a balance between competing interests, and the problem of interpretation is that there is uncertainty as to how far the provision goes in seeking to achieve the underlying purpose or object of the Act. Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose. 

   [5] [2007] HCA 47 at [5], (2007) 232 CLR 138 at 142-143.

2. This statement of principle is particularly apposite in a case such as this where the respondent submits that the RTW Act is remedial legislation which should be construed beneficially in favour of claimants.  That approach has historically been applied to workers compensation legislation, for example, Bull v The Attorney-General for New South Wales[6] and Bird v The Commonwealth of Australia.[7]However, the proposition that the RTW Act should be construed in favour of claimants is difficult to reconcile with the express provisions of s 3 which identifies the object of the RTW Act in the following terms:

   [6] [1913] HCA 60, (1913) 17 CLR 370 at 384.

   [7] [1988] HCA 23, (1988) 165 CLR 1 at 6, 9.

   (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).

3. Plainly s 3 expressly seeks to strike a balance between the interests of workers and the interests of employers while ensuring on the one hand that workers who suffer injuries are supported financially, but on the other hand that the overall social and economic cost of work injuries to the State and to the community is reduced. This is consonant with the statutory scheme by which the costs of rehabilitation and compensation must be met from the levies paid by employers and the investment of those funds. The funding of the scheme would be jeopardised if the RTW Act was always construed in favour of workers. Balancing the interests of workers and employers is important to the sustainability of the statutory scheme.

4. In this case the issue of constructional choice must be resolved by a consideration of the text, context and purpose of the particular provisions under consideration having regard to the scheme of the Act read as a whole. 

5. As was said in Certain Lloyd’s Underwriters, the determination of the purpose of a statute or of particular provisions in a statute resides in its text and structure.[8]

   [8] [2012] HCA 56 at [25], (2012) 248 CLR 379 at 389.

   Analysis

6. It is convenient to commence with s 61 of the RTW Act. Section 61, like any other provision in the RTW Act, only applies to facts and circumstances occurring upon the commencement of that Act. However, s 61 also is subject to the transitional provisions in the RTW Act and any other provision which is expressed to apply to pre-existing facts and circumstances i.e. facts and circumstances occurring before the commencement date of the RTW Act being 1 July 2015.

7. In the case of s 61 of the RTW Act, there is no provision in the Act which would render that section operative prior to the commencement date of the RTW Act other than the transitional provisions in Part 10 of Schedule 9 to the RTW Act.

8. The constructional choice that is posed by this appeal is set out in the parties’ contentions. The appellant submits that clause 45(1) of Schedule 9 of the RTW Act confers on it a power, “in its absolute discretion” to “make an ex gratia payment” of an amount determined by it, “after taking into account the amount (or additional amount) that would have been payable” under s 61 of the RTW Act “had [the RTW Act] been in operation before that trauma”. By clause 45(4), a decision of the appellant under clause 45(1) is not reviewable under the RTW Act or under the WRC Act. On the other hand, the respondent submits that the purpose of clause 45 is to provide for, not limit, payment to a non-dependent spouse of a worker who had died as a result of a work injury, having regard to the Parliamentary intent before 1 July 2008 and from 1 July 2015 that such a non-dependent spouse be entitled to a lump sum, in essence recognising that the period between 1 July 2008 and 1 July 2015 was not representative of the position which ought to have applied.

9. There is a degree of tension between clause 45 and clause 29 of Schedule 9.

10. The Full Bench construed clause 45 as comprehending three types of claims: claims for the death lump sum made under the WRC Act that failed (clause 45(1)); claims made under the WRC Act which succeeded but for which a greater payment can be made under the RTW Act (clause 45(2)); and claims made under the WRC Act that were not determined prior to the commencement of the RTW Act (clause 45(3)).

11. The Full Bench reasoned that regard should be had to clause 29 in answering the question of law referred. The Full Bench held there is no provision in Schedule 9 which prevents clause 29 from applying to the respondent’s claim. The Full Bench reasoned that the worker’s death was an existing injury under clause 29(1)(a), which provides that the RTW Act applies to existing injuries. Clause 29(3)(a) provides that the term “work injury” in the RTW Act is taken to include a reference to the term “compensable injury” in the WRC Act. Clause 29(3)(b) provides that in the absence of a transitional provision which provides otherwise, the RTW Act applies to compensable injuries under the WRC Act as if the RTW Act had been in operation when the compensable injury occurred.

12. In my view that reasoning is erroneous.

13. The construction adopted by the Full Bench of clause 45(1) is too narrow. The operation of that subclause is not confined to circumstances where a claim has failed. The text of clause 45(1) does not support such construction. It follows that the availability of a right to seek an ex gratia payment under clause 45 evinces an intention to exclude such claims being brought under clause 29(1)(a). Where conflict exists between the provisions of clause 45 and clause 29 the specific provision must prevail over the general provision. In this case clause 45 is the specific provision and clause 29 is the general provision. Clause 45 provides specifically for compensation for the partners of workers who died between 1 July 2008 and 1 July 2015. Clause 29 is a general provision in relation to the application of the RTW Act to existing injuries. The application of the maxim generalia specialibus non derogant is reinforced by the terms of clause 29(1) and (3) which are expressly made subject to other provisions of Part 10 of Schedule 9. Most obviously this includes clause 45. Accordingly, the extent of the operation of clause 29 can only be determined after the extent of the operation of other specific provisions, such as clause 45(1), have been identified.

14. As the High Court said in Project Blue Sky Inc v Australian Broadcasting Authority:[9]

    A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

    [citations omitted]

    [9] [1998] HCA 28 at [70], (1998) 194 CLR 355 at 381-382.

15. In this case clause 45 is the dominant provision. Clause 45 is an exclusive code in relation to compensation for the partners of workers who died between 1 July 2008 and 1 July 2015. Clause 45(1) provides expressly for the conferral of an unreviewable discretion upon the appellant to make a payment to a non‑dependent partner in any case where a worker died as the result of a work injury during the period 1 July 2008 to 1 July 2015, during which the WRC Act confined the payment of a death benefit to dependent partners. That purpose would be substantially frustrated, and clause 45(1) rendered almost wholly redundant, if the general provision in clause 29(1) is construed as conferring an entitlement to compensation pursuant to s 61 of the RTW Act on the very persons to whom clause 45(1) expressly applies.

16. The construction adopted by the Full Bench, and pressed by the respondent, would have the result that there would be no need for the partner of a deceased worker to invoke clause 45(1) because he or she would have an entitlement, conferred as of right by reason of the operation of clause 29(1), to compensation pursuant to s 61. That would confine the operation of clause 45(1) to the very narrow category of two kinds of claims: the first by partners who previously applied unsuccessfully for compensation pursuant to s 45A of the WRC Act; and the second by partners who had received lump sum payments under s 45A which were less than the payments that would have been payable under s 61, had the ][‘TW Act been in operation before that trauma. Contrary to that construction clause 45(1) is widely expressed to apply “in relation to the death of a worker occurring on or after 1 July 2008 and before the designated day”.

17. Clause 45(1) is intended, save for the specific exception provided in clause 45(3), to provide exhaustively for the entitlements of those persons to whom it applies, namely, the partners of workers who died between 1 July 2008 and 1 July 2015. The concluding phrase in clause 45(1) “that would have been payable under s 61 of this Act had this Act been in operation before that trauma” is a cogent factor favouring the appellant’s construction. It necessarily implies that s 61 does not apply to claims for compensation made by the partner of a worker who died on or after 1 July 2008 and before 1 July 2015 other than in the express terms of the subclause. While clause 45(1) does not expressly provide that a claim cannot be made under s 61 in relation to a death between 1 July 2008 and 1 July 2015, that is the necessary implication of its text and context. There would be no reason for the Parliament to create the specific exception in clause 45(3) for undetermined claims during the period 1 July 2008 to 1 July 2015 if s 61 of the RTW Act applied as of right irrespective of whether or not there was an undetermined claim at 1 July 2015.

18. Further, it is implicit in the express terms of clause 45(3) that s 61 does not apply to a claim for compensation for the death of a worker who died in the period from 1 July 2008 to 1 July 2015 except in the circumstances for which that subclause expressly provides, namely, where a claim had been made in relation to the death of that worker pursuant to s 45A of the WRC Act, but that claim had not been determined before 1 July 2015 (including by the resolution of any dispute by proceedings under the WRC Act). To the extent that the terms of clause 45 expressly confer specific benefits pursuant to s 61 of the RTW Act, those terms also necessarily limit the extent to which s 61 applies to claims to which clause 45 applies.[10] But there is no justification for reading into clause 45(1) the words of limitation for which the respondent contends. There is no basis to conclude that clause 45(1) is confined to claims for a death benefit made under the WRC Act that failed. There is nothing in its text which would support such a limitation on its operation. On the contrary, the subclause expressly applies in relation to the death of any worker occurring on or after 1 July 2008 and before the designated date. In addition, the text of clause 45(2) does not support such a limitation on the operation of clause 45(1). It provides that the appellant may make a payment under clause 45(1) even if a claim has been successful under s 45A of the WRC Act. That is inconsistent with the operation of clause 45(1) being confined to unsuccessful claims for a death benefit under the WRC Act.

    [10] R v Kirby; ex parte Boilermakers’ Society of Australia [1956] HCA 10, (1956) 94 CLR 254 at 270. See also Ferdinands v Commissioner for Public Employment [2006] HCA 5 at [4], [55] and [57], (2006) 225 CLR 130 at 133-134, 148 and 149.

19. For the period 1 July 2008 to 1 July 2015 the Parliament made a policy decision that the partner of a worker who died in compensable circumstances was only entitled to compensation where the partner was wholly or partially dependent on the earnings of the worker. In enacting s 61 of the RTW Act the Parliament plainly intended to amend that legislative policy. It did so prospectively, subject to the express exception found in clause 45(3). In doing so it is clear that the Parliament made specific provision by which the appellant could, in its discretion, make an ex gratia payment to those partners of workers who died in the relevant period. That payment is to be made after taking into account the amount (or additional amount) that would have been paid under s 61. The respondent submits that this construction operates harshly in respect of the partner of a worker who died shortly before the designated day because he or she is denied the right to review the discretionary decision of the appellant made pursuant to clause 45(1). Obviously that last proposition is correct but that does not gainsay the construction which I have adopted. Whenever legislation is amended so as to confer an additional benefit on persons to whom the legislation applies from a specified date there will be persons to whom the legislation applied prior to that date who will not enjoy the benefit conferred by the amendment. Where a statute imposes limits on an entitlement it is almost unavoidable that some person will fall on the wrong side of the limitation. That occurs frequently. It reflects the policy choices the Parliament makes in enacting or amending legislation. Whether one considers that the amendment operates harshly is a matter of opinion, but that is not an orthodox basis for construing the legislation so that the amending Act should be construed so as to confer a benefit on persons the Parliament did not intend should enjoy that benefit. As it is the Parliament has seen fit to make provision for ex gratia payments which can be made to the partners of deceased workers who died in the seven year period preceding the designated day. That provision is discretionary and unreviewable. It is to be made taking into account the amount, or additional amount, that would have been payable if s 61 had applied. It is that consideration which informs the exercise of the discretion.

20. Section 61 operates prospectively from 1 July 2015. It does not operate, in effect, retrospectively from 1 July 2008 except in the specific circumstance in clause 45(3). To construe the RTW Act otherwise involves error.

21. The respondent seeks to rely upon the provisions of clause 50 of Schedule 9 of the RTW Act. Clause 50 provides:

    (1)Subject to this Part, an application or other proceedings commenced before WCT under the repealed Act before the designated day may be continued and completed (and any appeals initiated or completed) under the repealed Act (and, if relevant, after applying any provision of this Part that is relevant to the proceedings).

    (2) A right to make an application or to bring proceedings before WCT under the repealed Act in existence before the designated day and not exercised before that day will be exercised as if Part 6 of this Act were in operation before that right arose so that the relevant proceedings will be commenced before SAET rather than WCT.

    (3) Without limiting any other provision—

    (a)     the regulations may make provision for or with respect to the interaction between this Part and the repealed Act in order to ensure that SAET and WCT can operate under both sets of provisions (including, if necessary, by modifying any provision of the repealed Act or section 7 of this Act so that SAET can exercise the jurisdiction conferred by subclause (2)); and

    (b)     the President of SAET may take other steps to ensure the smoothest possible transition from 1 jurisdiction to the other in connection with the operation of this clause (including by giving directions as to any procedural matter which will then have effect according to their terms).

22. The respondent submits that clause 50 suggests that a disputed claim under the WRC Act is decided under the WRC Act, and arguably that an undetermined claim made under the WRC Act is decided under the WRC Act because on such a claim an application for expedited determination can be made.

23. I do not accept this submission. Clause 50 is purely procedural. It does not assist one way or another in the construction of clauses 29 and 45.

24. The appellant’s construction is to be preferred. It is consistent with the text of clause 45, the operation of that clause in the context of the statutory scheme, and the purpose of the clause as ascertained from the text and structure of the RTW Act.

    Conclusion

25. I would allow the appeal.  I would set aside the answer given by the Full Bench.  I would answer the question of law referred to the Full Bench:  “Yes”.  I would dismiss the respondent’s application for review.  I would hear the parties as to costs.

1. NICHOLSON J:  I agree with Stanley J.