Victorian WorkCover Authority v Virgin Australia Airlines Pty Ltd
[2013] VSC 720
•20 DECEMBER 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. S CI 2012 06086
| VICTORIAN WORKCOVER AUTHORITY | Plaintiff |
| v | |
| VIRGIN AUSTRALIA AIRLINES PTY LTD (ACN 090 670 965) | First defendant |
| And | |
| PAUL TZOVLAS | Second defendant |
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JUDGE: | BELL J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 21 OCTOBER, 18 DECEMBER 2013 | |
DATE OF JUDGMENT: | 20 DECEMBER 2013 | |
CASE MAY BE CITED AS: | VICTORIAN WORKCOVER AUTHORITY v VIRGIN AUSTRALIA AIRLINES PTY LTD | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 720 | |
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WORKERS COMPENSATION – worker injured while travelling on airplane during course of employment – proceeding issued against carrier for damages under Civil Aviation (Carriers’ Liability) Act 1959 (Cth) – workers compensation also claimed and received under Accident Compensation Act 1985 (Vic) – Victorian Workcover Authority issued proceeding for recovery of compensation up to amount of damages awarded under Commonwealth legislation – whether damages payable ‘under the law of any place outside Victoria’ – whether the Commonwealth legislation such a law – relevance of general remedial purpose of legislation to interpretation of provision having non-remedial purpose – ‘law of any place’ – Accident Compensation Act s 85(6)(b).
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APPEARANCES: | Counsel | Solicitors |
| For the plaintiff | Mr J Ruskin QC with Mr J Simpson | Russell Kennedy |
| For the second defendant | Mr R McGarvie SC with Mr M Walsh | Nowicki Carbone Lawyers |
HIS HONOUR:
Recovery proceeding
Paul Tzovlas was injured on 24 August 2010 while being carried as a passenger on a Virgin Airlines flight from Sydney to Melbourne. He was travelling during the course of his employment with Motor Trader Group Pty Ltd.
The injury occurred in the airspace above Tullamarine airport in Melbourne, Victoria just before the aeroplane landed. A flight attendant lost control of a portable EFTPOS machine and dropped it on Mr Tzovlas’s head. He twisted sharply and badly injured his back.
Under the Civil Aviation (Carriers’ Liability) Act 1959 (Cth), Virgin’s liability as a carrier for unlimited damages for negligence is replaced with a no-fault liability for personal injury,[1] limited (at the relevant time) to $500,000.[2] In reliance on that Act, Mr Tzovlas issued proceedings in this court for damages in that amount against Virgin (‘the worker’s proceeding’).
[1]Sections 28 and 36.
[2]Section 31(1).
Mr Tzovlas also claimed workers’ compensation under the Accident Compensation Act 1985 (Vic). Pursuant to that Act, he has been paid a substantial amount by way of weekly benefits, a lump sum, medical and like expenses and other amounts. Workers are usually entitled to receive weekly payments until the age of 65 years.[3]
[3]Accident Compensation Act 1985 (Vic) s 93F.
Where a worker who has been paid compensation under that Act also obtains an order for damages ‘under the law of any place outside Victoria (whether within or outside Australia)’, s 85(6) allows the Victorian Workcover Authority to recover from him or her the amount of the compensation up to the amount of the damages obtained. In anticipation of Virgin being ordered to pay such damages to Mr Tzovlas in the worker’s proceeding, the VWA has issued proceedings under s 85(6) against them (‘the recovery proceeding’). I am sitting here in that proceeding.
Threshold issue
An important threshold issue has arisen between the parties. The VWA contends, and Mr Tzovlas denies, that the claim he has made in the worker’s proceeding is one ‘under the law of any place outside Victoria (whether within or outside Australia)’. Pursuant to r 47.04(a) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic), a question has been stated for determination prior to trial so that this controversy can be resolved. The question is in the following terms:
[D]oes the claim for damages made in the worker’s proceeding constitute a claim in respect of injury under the law of any place outside Victoria (whether within or outside Australia) for the purposes of s 85(6) of the Accident Compensation Act (Vic) 1985?
Mr Tzovlas contends that he would be greatly disadvantaged if his claim under the Commonwealth Act comes within s 85(6) of the Accident Compensation Act. Damages are capped by the Commonwealth Act at $500,000, most of which would be recovered by the VWA. The injuries caused by Virgin’s negligence would normally warrant damages greatly exceeding $500,000. He should at least be entitled to keep that amount. According to the established principles of interpretation, any ambiguity in the provisions of the Accident Compensation Act should be resolved in his favour. The claim under the Commonwealth Act is not a claim ‘under the law of any place outside Victoria (whether within or outside Australia)’ because, constitutionally, Victoria is part of the Commonwealth and the Commonwealth includes Victoria. Therefore the Commonwealth is not a place outside Victoria.
I have considerable sympathy for Mr Tzovlas’s position. Based on the nature and extent of his injuries, his previous working capacity and the late-tendered medical and like reports (application for leave being granted), my assessment is that he probably would have obtained substantially greater damages in respect of Virgin’s negligence if the injuries had been caused other than in the course of carriage by air. His entitlements under the Accident Compensation Act are significantly less. Accepting that Mr Tzovlas will be financially disadvantaged by my decision, regrettably I cannot accept the careful and detailed submissions which have been made on his behalf.
Statutory provisions
I will begin explaining that conclusion with reference to the provisions of the Accident Compensation Act. As specified in s 3(d), an object of the Act is ‘to provide adequate and just compensation to injured workers’. This is an object of fundamental importance the achievement of which is facilitated by a broad concept of entitlement.
Section 82(1) is the primary entitlement provision. It states:
If there is caused to a worker an injury arising out of or in the course of any employment, the worker shall be entitled to compensation in accordance with this Act.
It can be seen that entitlement does not depend upon the fault of the employer. It depends simply upon the fact of an injury[4] to the worker, including an injury suffered outside Australia,[5] arising out of or in the course of employment.[6] Mr Tzovlas is a worker who suffered such an injury for which he has been receiving compensation under the Act.
[4]By the definition in s 5(1), ‘injury’ includes disease and industrial deafness. Section 86 creates an entitlement to compensation for disease and s 88 for industrial deafness.
[5]Section 84(1).
[6]Section 83(1) is a deeming provision which broadens the test to include (for example) work-related travel (para (b)).
While the entitlement provisions are broad, they are not unlimited. The Act makes provision for a scheme of workers compensation, not injury compensation generally. One of its objects is ‘to establish and maintain a fully-funded scheme’,[7] which the VWA must manage ‘as effectively and efficiently and economically as is possible’.[8] The limitations on entitlement underpin the financial and operational integrity of the scheme.
[7]Section 3(h).
[8]Section 19(a); see also s 19(g).
One limitation is that there ‘is no entitlement to compensation … other than in respect of employment that is connected with this State’.[9] That connection is supplied where Victoria is the worker’s usual base or place of work or the employer’s principal place of business.[10] This provision was satisfied in the case of Mr Tzovlas as Victoria was his usual place of work.
[9]Section 80(1).
[10]Section 80(3).
Another limitation is that the provisions of the Act give effect to a principle against the double-payment of compensation to or, using the vernacular, ‘double-dipping’ by injured workers. As we shall see, so did the predecessor legislation. In the current Act, s 84B(1) provides that compensation is not payable ‘to the extent that compensation has been received in respect of the same injury under the laws of a place other than this State (whether within or outside Australia)’. Where double-payment does occur, s 84B(2) and (3) confer a right of recovery of the compensation paid under the Act on the VWA.
This principle against the double-payment of compensation also applies where the worker is entitled to obtain damages under the law of another place. For example, where the worker is entitled to receive, and (among other possibilities) obtains such damages, the entitlement to claim compensation under the Act is removed.[11] Another example is s 85(6), the interpretation of which is raised by the threshold question.
[11]Section 85(3).
Here is s 85(6), in full:
If a person—
(a) receives compensation under this Act in respect of any injury; and
(b)subsequently obtains damages or an award of damages, accepts a payment into court or settles or compromises a claim in respect of the injury under the law of any place outside Victoria (whether within or outside Australia)—
the Authority, employer or a self-insurer shall be entitled to recover from that person the amount of compensation paid under this Act or an amount equal to the damages or payment obtained or made, settled or compromised whichever is the lesser amount.
I have put the critical words in bold.
In summary, the Accident Compensation Act is remedial legislation of very great importance. It confers an entitlement to compensation on injured workers which is not fault-based. However, entitlement is not unlimited. A connection with Victoria is required and there is a principle against the double-payment of compensation in respect of the same injury. That is the particular context in which the provision in question must be interpreted.
There is no issue that, in the worker’s proceeding, Mr Tzovlas makes a claim under a Commonwealth Act in respect of the injury for which he is receiving compensation under the Accident Compensation Act. There is no issue that that Act is a law of a ‘place’, namely the Commonwealth of Australia. The question is whether any damages awarded pursuant to the claim would constitute damages paid under the law of a ‘place outside Victoria (whether within or outside Australia)’.
The applicable principles of interpretation loom large in the resolution of this question.
Principles governing the interpretation of legislation
As submitted on behalf of Mr Tzovlas, the provisions of workers’ compensation legislation must be interpreted according to the principle which applies to remedial legislation generally. That principle was stated by Isaacs J in Bull v Attorney-General (NSW)[12] in the following terms:
In the first place, this is a remedial Act, and therefore, if any ambiguity existed, like all such Acts should be construed beneficially (per Lord Loreburn LC in Bist v London and South Western Railway Co[13]). This means, of course, not that the true signification of the provision should be strained or exceeded, but that it should be construed so as to give the fullest relief which the fair meaning of its language will allow. It is so laid down in Giovanni Dapueto v James Wyllie & Co; The ‘Pieve Superiore’[14] and in Gover's Case[15].[16]
This statement of the principle has been followed many times by courts of the highest authority.[17]
[12](1913) 17 CLR 370.
[13](1907) AC 209, 211.
[14]LR 5 PC 482, 492.
[15]1 Ch D 182, 198.
[16](1913) 17 CLR 370, 384 (Isaacs J dissented in the result).
[17]Waugh v Kippen (1986) 160 CLR 156, 164 (Gibbs CJ, Mason, Wilson and Dawson JJ); ICI Australia Operations Pty Ltd v Workcover Authority of New South Wales (2004) 60 NSWLR 18, 82 [349] (McColl JA, Mason P and Meagher JA agreeing); R v Irvine (2009) 25 VR 75, 91-2 [90] (Neave JA, Nettle JA and Lasry AJA agreeing) (‘Irvine’).
While remedial legislation must generally be interpreted beneficially, the application of the rule must ‘be restrained within the confines of “the actual language employed” and what is “fairly open” on the words used’.[18] As Brennan CJ and McHugh J explained in IW v City of Perth:[19]
the task remains one of statutory construction. Although a provision of [a remedial Act] must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural.[20]
[18]Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622, 638 (Mason, Brennan, Deane and Dawson JJ).
[19](1997) 191 CLR 1.
[20]Ibid 12.
It is well established that the principle that remedial legislation is to be interpreted beneficially applies to workers’ compensation legislation.[21] As stated by Fullagar J in Wilson v Wilson’s Tile Works Pty Ltd,[22] the rule is that, ‘where two constructions of a Workers’ Compensation Act are possible that which is favourable to the worker should be preferred’. In this court, that statement of principle has been followed by the Full Court[23] and the Court of Appeal.[24] The principle continues to have a legitimate sphere of operation despite the contemporary tendency to reduce entitlement to workers’ compensation.[25] Recently I applied the principle to the interpretation of the Accident Compensation Act.[26]
[21]See eg Bird v Commonwealth (1988) 165 CLR 1, 6 (Mason CJ, Brennan and Toohey JJ), 9 (Deane and Gaudron JJ).
[22](1960) 104 CLR 328, 335.
[23]Dodd v Executive Air Services Pty Ltd [1975] VR 668, 679 (Newton J), 682 (Norris J); Glazebrook v Accident Compensation Commission [1988] VR 454, 459 (Crockett, O’Bryan and Vincent JJ).
[24]Victorian Workcover Authority v Del Borgo (2004) 9 VR 470, 489 [60] (Eames JA, Winneke P and Ormiston JA agreeing).
[25]Hegedis v Carlton & United Breweries Ltd (2000) 4 VR 296, 301-2 [32] (Ashley J).
[26]Hansen Yuncken Pty Ltd v Baxter [2013] VSC 337 (27 June 2013) [10].
When applying principles of interpretation to particular provisions having one purpose, it is sometimes necessary to take into account that the provisions of the enactment generally have another purpose. One example is the interpretation of a penal provision in occupational health and safety legislation which is generally beneficial. The normal rule is that statutes creating offences are to be strictly construed.[27] But when the penal provision is found in occupational health and safety legislation, a court must not interpret the provisions ‘so strictly as to deprive the worker of the protection which Parliament intended that he should have’.[28]
[27]Beckwith v The Queen (1976) 135 CLR 569, 576 (Gibbs J).
[28]Waugh v Kippen (1986) 160 CLR 156, 164 (Gibbs CJ, Mason, Wilson and Dawson JJ); applied in Irvine (2009) 25 VR 75, 92 [91] (Neave JA, Nettle JA and Lasry AJA agreeing).
If a general remedial context may operate to weaken the force of a strict rule of construction applying to particular penal provisions, it is clearly of importance to plainly pay attention to the general legislative context in which a particular provision appears. However, the particular provision in the present case is not penal and would not be strictly interpreted to begin with. We are dealing here with the obverse case: the purpose of the particular provision is not beneficial while the general purpose of the enactment is beneficial. This raises a different interpretative problem.
In addressing the principles applicable to the resolution of that problem, I begin with the modern approach to statutory interpretation. That approach was stated by Brennan CJ, Dawson, Toohey and Gummow JJ in CIC Insurance Ltd v Bankstown Football Club Ltd[29] as follows:[30]
It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure.[31] Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy.[32] Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd,[33] if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent[34].
[29](1997) 187 CLR 384.
[30]Ibid 408.
[31]Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg Aktiengesellscaft [1975] AC 591, 614, 629, 638; Wacando v Commonwealth (1981) 148 CLR 1, 25-6; Pepper v Hart [1993] AC 593, 630.
[32]Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436, 461 (Viscount Simonds), cited in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309, 312 (Gibbs CJ), 315 (Mason J).
[33](1986) 6 NSWLR 363, 388.
[34]Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 320-1 (Mason and Wilson JJ).
This approach was restated (without naming it as such) in Project Blue Sky Inc v Australian Broadcasting Authority[35] in the context of the interpretation of conflicting provisions in one enactment. McHugh, Gummow, Kirby and Hayne JJ said:[36]
The 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.[37] The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’.[38] In Commissioner for Railways (NSW) v Agalianos,[39] Dixon CJ pointed out that ‘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’. Thus, the process of construction must always begin by examining the context of the provision that is being construed[40].
[35](1998) 194 CLR 355.
[36]Ibid 381 [69].
[37]See Taylor v Public Service Board (NSW) (1976) 137 CLR 208, 213 (Barwick CJ).
[38]Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 320 (Mason and Wilson JJ). See also South West Water Authority v Rumble's [1985] AC 609, 617 (Lord Scarman), ‘in the context of the legislation read as a whole’.
[39](1955) 92 CLR 390, 397.
[40]Toronto Suburban Railway Co v Toronto Corporation [1915] AC 590, 597 (Viscount Haldane LC); Minister for Lands (NSW) v Jeremias (1917) 23 CLR 322, 332 (Isaacs J); K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309, 312 (Gibbs CJ), 315 (Mason J), 321 (Deane J).
As so stated, the modern approach to statutory interpretation requires the court to focus in the first instance upon the meaning of the language of the text in the context of the whole enactment and its purpose. The policy rationale of the approach being utility, not the resolution of ambiguity, it is not necessary for the court first to find an ambiguity.
In subsequent cases, the High Court has dealt with cases where not enough attention has been paid to the text of the provision in question and too much attention has been paid to its context. In such cases, the court has repeatedly emphasised the primacy of the text. For example, in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT),[41] Hayne, Heydon, Crennan and Kiefel JJ said:
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself.[42] Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text.[43] The language which has actually been employed in the text of legislation is the surest guide to legislative intention.[44] The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision,[45] in particular the mischief[46] it is seeking to remedy.[47]
The High Court has recently affirmed these views.[48]
[41](2009) 239 CLR 27.
[42]Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (2001) 207 CLR 72, 77 [9] Gaudron, Gummow, Hayne and Callinan JJ), 89 [46] (Kirby J); Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193, 206 [30] (Gleeson CJ, Gummow, Hayne and Heydon JJ), 240-1 [167]-[168] (Kirby J); Carr v Western Australia (2007) 232 CLR 138, 143 [6] (Gleeson CJ); Director of Public Prosecutions (Vic) v Le (2007) 232 CLR 562, 586 [85] (Kirby and Crennan JJ); Northern Territory v Collins (2008) 235 CLR 619, 642 [99] (Crennan J).
[43]Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529, 538 [22] (Gleeson CJ, Gummow, Hayne and Heydon JJ), 555-6 [82]-[84] (Kirby J). See also Combet v Commonwealth (2005) 224 CLR 494, 567 [135] (Gummow, Hayne, Callinan and Heydon JJ); Northern Territory v Collins (2008) 235 CLR 619, 642 [99] (Crennan J).
[44] Hilder v Dexter [1902] AC 474, 477-8 (Earl of Halsbury LC).
[45]Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390, 397 (Dixon CJ), quoted with approval in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 [69] (McHugh, Gummow, Kirby and Hayne JJ).
[46]Heydon's Case (1584) 3 Co Rep 7a, 7b; ER 637, 638.
[47](2009) 239 CLR 27, 46-7 [47]. Further authorities making the same point were recently collected by Weinberg JA in SM v The Queen [2013] VSCA 342 (28 November 2013) [51]-[54] (‘SM’).
[48]Kline v Official Secretary of the Governor-General [2013] HCA 52 (6 December 2012) [32] (French CJ, Crennan, Kiefel and Bell JJ) (‘Kline’).
Such statements serve as a strong reminder that close attention must be paid to the language of statutory provisions. The meaning of the text always remains the primary consideration and the task of ascertaining that meaning must not be allowed to become subordinate to considerations of context and purpose. However, these recent statements of the High Court have not been understood to override the modern approach to statutory interpretation. As Pearce and Geddes state in their leading text, ‘it appears to be accepted that the modern approach to interpretation articulated in the CIC Insurance case retains its validity’.[49] Recently in SM v The Queen,[50] Weinberg JA reviewed the authorities and said that the recent statements of the High Court ‘most definitely [do] not mean that … “purposive” considerations can be ignored’.[51] Even more recently in MyEnvironment Inc v VicForests,[52] Warren CJ said ‘there is no doubt that [CIC Insurance Ltd and Project Blue Sky Inc] endorse a purposive approach to statutory construction’.
[49]DC Pearce and RC Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 7th ed, 2011) 75 [3.7].
[50][2013] VSCA 342 (28 November 2013).
[51]Ibid [55].
[52][2013] VSCA 356 (10 December 2013) [4] (Garde AJA agreeing) (‘MyEnvironment’). The Chief Justice made a qualification to this statement to which I will later come.
Purposive considerations are of critical importance to the submissions made for Mr Tzovlas in the present case. On those submissions, the meaning of the language of s 85(6) of the Accident Compensation Act must be understood in the context of the general remedial purpose of that Act. As two interpretations of the provision are equally open, the beneficial interpretation principle requires that the interpretation which is favourable to the worker must be preferred.
In addressing these submissions, it is necessary to take into account that legislation may contain provisions having different purposes. That is particularly true of modern legislation which is typically complex. We saw an example of that earlier with occupational health and safety legislation containing both penal and beneficial provisions. The general beneficial purpose brought about a weakening of the principle of strict interpretation usually applied to a penal provision. Likewise there may be real questions about how far particular provisions go in implementing a general purpose. A recent example of that was Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd[53] where the High Court held that the provision in question should not be expansively interpreted by reference to its purpose because it did not comprehensively deal with the relevant subject.[54] Another example is MyEnvironment[55] where the Court of Appeal of this court declined to interpret specific provisions (of delegated legislation) by reference to the general purposes of the (enabling) legislation as a whole. The present cases falls into this later category.
[53](2013) 87 ALJR 1009.
[54]Ibid 1017 [42] (Crennan, Kiefel, Bell, Gageler and Keane JJ).
[55][2013] VSCA 356 (10 December 2013) (Warren CJ, Tate JA and Garde AJA).
This general principles applicable to the resolution of this general problem were discussed by Gleeson CJ. In Nicholls v The Queen[56] his Honour said:
[56](2005) 219 CLR 196.
Legislation such as [the provision in question] seeks to strike a balance between competing considerations and interests. A search for legislative purpose needs to take account of the fact that legislatures rarely engage in the pursuit of a single purpose at all costs. Problems of statutory construction often arise because the extent to which the legislature intends to pursue a given purpose is unclear. When, as is so obviously the case with [the provision], Parliament adopts a compromise, a court may be left with the text as the only safe guide to purpose.[57]
[57]Ibid 207 [8].
Further, in Carr v Western Australia[58] his Honour made particular mention of the rule of interpretation favouring the purpose of the enactment which is to be found in federal[59] and State[60] legislation. Victoria has such legislation[61] and it applies in the present case. Of that general rule of interpretation, his Honour said:
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. As to federal legislation, that approach is required by s 15AA of the Acts Interpretation Act 1901 (Cth). It is also required by corresponding State legislation … 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.[62]
To illustrate that general point, his Honour referred to income tax legislation. The ‘underlying purpose’ of such legislation was ‘to raise revenue for government’.[63] Yet no one would think that:
s 15AA of the Acts Interpretation Act has the result that all federal income tax legislation is to be construed so as to advance that purpose. Interpretation of income tax legislation commonly raises questions as to how far the legislation goes in pursuit of the purpose of raising revenue. In some cases, there may be found in the text, or in relevant extrinsic materials, an indication of a more specific purpose which helps to answer the question. In other cases, there may be no available indication of a more specific purpose. Ultimately, it is the text, construed according to such principles of interpretation as provide rational assistance in the circumstances of the particular case, that is controlling.[64]
[58](2007) 232 CLR 138 (‘Carr’).
[59]Acts Interpretation Act 1901 (Cth) s 15AA.
[60]See eg Interpretation Act 1984 (WA) s 18.
[61]Interpretation of Legislation Act1984 (Vic) s 35(a).
[62](2007) 232 CLR 138, 142-3 [5].
[63]Ibid 143 [6].
[64]Ibid.
The judgment of Gleeson CJ in Carr has been cited with approval by the High Court[65] and applied by intermediate courts of appeal,[66] including the Court of Appeal of this court,[67] most recently in MyEnvironment.[68]
[65]See Lee v New South Wales Crimes Commission (2013) 302 ALR 363, 437 [262] (Bell J); Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd (2013) 87 ALJR 1009, 1016 [40]-[41] (Crennan, Kiefel, Bell, Gageler and Keane JJ); Kline [2013] HCA 52 (6 December 2012) [37] (French CJ, Crennan, Kiefel and Bell JJ).
[66]Tran v Commonwealth (2010) 187 FCR 54, 71-2 [67]-[68] (Rares J); Re CSR Ltd (2010) 183 FCR 358, 374-5 [53] (Keane CJ and Jacobson J); Parker v Parker (2012) 47 Fam LR 122, 127 [14] (Coleman J); Jomal Pty Ltd v Commercial and Consumer Tribunal [2010] 2 Qd R 409, 425-6 [29] (Keane JA, McMurdo P agreeing); Australian Postal Commissioner v Sinnaiah (2013) 213 FCR 449, 456-7 (29 August 2013) [28] (Cowdroy, Buchanan and Katzmann JJ).
[67]Loader v The Queen (2011) 33 VR 86, 93 [36] (Nettle JA, Warren CJ and Ashley JA agreeing); WBM v Chief Commissioner of Police [2012] VSCA 159 (30 July 2012) [60] (Warren CJ, Hansen JA agreeing);
[68][2013] VSCA 356 (10 December 2013) [6] (Warren CJ, Garde AJA agreeing), [148] (Tate JA, Garde AJA agreeing).
The issue in MyEnvironment was whether the interpretation of subordinate instruments made under fauna and forests legislation was to be informed by the perceived alleged primary purpose of that legislation. Warren CJ, Tate JA and Garde AJA held that it was not because no single purpose was evident.
While accepting the authority of CIC Insurance Ltd and Project Blue Sky Inc in relation to the purpose interpretation of legislation, Warren CJ (Garde AJA agreeing) was of the view that ‘caution is required when seeking to interpret a particular provision expansively because it is perceived that the legislation as a whole pursues an underlying purpose’.[69] In my view, equal caution is required when seeking to interpret a particular provision restrictively because such an underlying purpose is perceived.
[69]Ibid [4].
The Chief Justice went on the state that the authorities supported two related propositions:
First, that it is rarely, if ever, the case that legislation pursues a single purpose to the fullest extent possible. Rather legislation is typically the result of a carefully considered attempt at balancing multiple and sometimes competing objectives. To assume that the apparently confined words of a provision must be given an expansive operation on the basis of what is perceived to be the legislation’s primary purpose may frustrate rather than effectuate the legislative intent.
In this case, … the legislative scheme pursues multiple purposes … The relevant question is where the legislature has determined that the appropriate balance should lie.
Secondly, even when a single, or significant legislative purpose can be clearly perceived, such a purpose may be articulated at a level of generality that makes it unhelpful when construing a particular provision which manifests a more specific legislative intent.[70]
[70]Ibid [14]-[16].
Referring to the same principles, Tate JA (Garde AJA agreeing) held that, when interpreting legislation having a multiplicity of purposes or seeking to strike a balance between competing interests, the purposive rule of interpretation may be of little assistance; in such a case, the purpose of the enactment might not compel a particular interpretation and the correct interpretation will depend upon the language of the provision understood in its own context.[71]
[71]Ibid [148] and [155], applying Carr (2007) 232 CLR 138, 142-3 [5] (Gleeson CJ) and Kelly v The Queen (2004) 218 CLR 216, 232-3 [41], [43](Gleeson CJ, Hayne and Heydon JJ).
In the present case, it is necessary to identify the scope of a particular provision in workers’ compensation legislation. The general purpose of the legislation is remedial, indeed powerfully so. But the purpose of the provision is clearly non-remedial. By the applicable principles of interpretation, it is not particularly helpful to refer to the general remedial purpose when interpreting this particular provision. Caution is required when applying the beneficial interpretation principle in such a case. The words used in the provision, understood in their own context, are likely to be a better indication of the legislative intention.
To the application of those principles I now turn.
‘Law of any place outside Victoria’ in s 85(6)(b) of Accident Compensation Act
Legislative history
The submission made for Mr Tzovlas relied on the difference in language in s 85(6) of the current Act when compared with s 6(2) and (4) of the 1958 Act. It was submitted that s 85(6) of the current Act deliberately defined the applicable category in a way that was different to s 6(2) and (4) of the 1958 Act. So defined, it excluded laws of the Commonwealth.
I cannot accept that submission. As I will demonstrate, the legislative history suggests Parliament has always been concerned to prevent the double-payment of compensation under Victorian law (on the one hand) and non-Victorian law (on the other). A number of provisions have been enacted for the achievement of that purpose of which s 85(6) of the current Act is but the latest emanation. The expression ‘under the law of any place outside Victoria (whether within or outside Australia)’ would appear to have been adopted as a convenient and compendious method of defining the category in a way which includes all non-Victorian sources of law, including Commonwealth laws, not in order deliberately to change the scope of the category concerned.
The Accident Compensation Act established a new scheme for administering workers’ compensation in Victoria. The old scheme was contained in the Workers Compensation Act 1958 (Vic), which was originally enacted in 1914.
The Workers’ Compensation Act 1914 contained provisions dealing with the situation which arises when a worker can make a claim elsewhere as well as in Victoria. Section 5(2)(d) provided:
if a claim for compensation has already been made by the claimant in respect of the injury under any law of the United Kingdom or of the Commonwealth of Australia or of any other part of His Majesty’s dominions, compensation under this Act shall not be allowed to the claimant, nor shall any person having such a claim under any such law claim under this Act unless he makes a statutory declaration that he has not claimed and covenants with the employer that he will not claim compensation for the injury under any such law.
It can be seen that s 5(2)(d) specified very precisely the relevant category by reference to the several jurisdictional sources of the laws concerned (including the Commonwealth of Australia), not by reference to the laws of places outside Victoria. Assuming (as one would) that ‘any other part of His Majesty’s dominions’ was not intended to include Victoria, all of the specified sources were non-Victorian.
Section 5(2)(d) of the Workers Compensation Act 1914 was amended by s 4 of the Workers’ Compensation (Amendment) Act 1950 (Vic). It substituted para (d) of sub-s (2) with the following paragraphs:
(d)compensation shall not be payable in respect of any injury under any provision of the Workers’ Compensation Acts or any scheme thereunder if compensation or damages has already been paid or recovered or an award of compensation or judgment for damages has already been made given or entered in respect of the injury under any law of the United Kingdom or of the Commonwealth of Australia or any State or territory thereof or any other part of the King’s Dominions;
(e)where any person has a right to claim compensation or a right of action in respect of any injury under any such law he shall not be entitled to claim compensation in respect of the injury under the Workers’ Compensation Acts or any scheme thereunder unless he makes a statutory declaration that he has not claimed compensation or brought action for damages under any such law and covenants with his employer not to claim compensation nor to bring any action for damages under any such law;
(f)if a person receives compensation under any provision of the Workers’ Compensation Acts or any scheme thereunder in respect of any injury and subsequently compensation or damages are obtained by him or an award of compensation or judgment for damages in his favour is made given or entered in respect of the injury under any law of the United Kingdom or the Commonwealth of Australia or any State or territory thereof or any other part of the King’s Dominions, then the employer shall be entitled to recover from that person the amount of the compensation paid by the employer pursuant to the Workers’ Compensation Acts or the said scheme;
(g)compensation shall not be payable pursuant to this section if compensation has already been paid or is payable under any scheme under section thirteen of this Act; …
It can be seen that the amendments employed the same precise manner of describing the category by reference to non-Victorian sources of jurisdiction. In the second reading speech in Parliament, the responsible minister described the purpose of the provision as preventing the double-payment of compensation:
Clause 4 is, in effect, a redefinition of paragraph (d) of sub-section (2) of section 5 of the 1928 Act. The new clause retains the principle that there shall not be duplication of claims, and if a worker has a claim under the law of the United Kingdom, the Commonwealth of Australia, or any other State, then he cannot pursue that claim and also claim under the Victorian Act as well. The amendment is merely a clarification of this principle.[72]
[72]Victoria, Parliamentary Debates, Legislative Assembly, 28 November 1950, 2618 (Keith Dodgshun, Chief Secretary).
When the consolidated Workers Compensation Act 1951 (Vic) was enacted, these provisions were retained but set out in various sub-sections of s 6 rather than in paragraphs of s 5(2). Section 6 was re-enacted in that form in the Workers Compensation Act 1958 (Vic) (with amendments not relevant here).
Section 6(2) of the Workers Compensation Act 1958 was amended by s 4(1)(b) of the Workers Compensation Act 1970 (Vic). It substituted for the words ‘any State or Territory’ the expression ‘any State (other than the State of Victoria) or Territory’. That removed the doubt that was created by the unqualified words ‘any State’. Laws of the Commonwealth continued to be expressly included in the applicable category.
Section 6(2) of the Workers Compensation Act 1958 was repealed by the Workers Compensation (Actions) Act 1981 (Vic). The subject of a worker’s entitlement to compensation where damages could be claimed or were paid under an external law was dealt with in s 4 of the amending Act, which inserted a new s 7B into the principal Act. In describing the external laws concerned, s 7B used a somewhat different expression to the one which had been used in the previous legislation. The new expression was ‘under any law of, or in, any State (other than Victoria) territory or country’. For example, s 7B(2) provided as follows:
If a person receives compensation under any provision of this Act in respect of any injury and subsequently compensation or damages are obtained by him or an award of compensation or damages in his favour is made given or entered or a payment into court is accepted by him or a claim is settled or compromised in his favour in respect of the injury under any law of, or in, any State (other than Victoria) territory or country then the employer shall be entitled to recover from that person the amount of the compensation paid by the employer pursuant to this Act or an amount equal to the compensation or damages or payment obtained or made settled or compromised (whichever is the lesser amount).
It can be seen that, while the form of the specification was somewhat different, the category continued to be defined by reference to non-Victorian jurisdictional sources of the law. It did not define the category by reference to a ‘place outside Victoria’. The provision continued to capture laws of the Commonwealth because, of course, the Commonwealth of Australia is a ‘country’. Victoria is not.
When the Accident Compensation Act was enacted in 1985, that was the form in which the Workers Compensation Act 1958 relevantly stood.
Section 85(6) was present in the Accident Compensation Act when it was first enacted in 1985. As so enacted, the category in para (b) was expressed in terms of damages or payments made ‘under the law of any place outside Victoria’. That is the origin of the expression. There is simply nothing to suggest that, by adopting this different form of words, Parliament intended to redefine the category of applicable laws so as to exclude laws of the Commonwealth. This would have been a significant change in the scope and policy of the provision. No reason appears for making such a change. Rather, the new form of words would appear to be a convenient and compendious way of defining the same category.
Section 85(6) was amended by s 19(7) of the Accident Compensation and Transport Accident Acts (Amendment) Act 2003 (Vic) to insert after ‘Victoria’ the words ‘(whether within or outside Australia)’. That is the present form of the provision. As we will see, that addition was made for clarificatory purposes. It does not help with the resolution of the present controversy either way.
Section 80(8) of the current Act provides that compensation is not payable in respect of the employment of a worker on a ship if the Seafarers Rehabilitation and Compensation Act 1992 (Cth) applies to that employment. On the submissions made for Mr Tzovlas, that provision would not be necessary if ‘the laws of a place other than this State’ in s 84B(1) included laws of the Commonwealth. It was submitted that in both that provision and s 85(6)(b), laws of the Commonwealth are not included. I do not accept these submissions. Section 80(8) deals with a very specific case. It does not provide insight into how the general category of laws of ‘any place outside Victoria’ is to be understood.
In summary, under the historical and current legislation, the category of laws has been and is defined as follows:
Section 5(2)(d) of the 1914 Act:
‘under any law of the United Kingdom or of the Commonwealth of Australia or of any other part of His Majesty’s dominions …’
Section 5(2)(d) of the 1950 Act:
‘under any law of the United Kingdom or of the Commonwealth of Australia or any State or territory thereof or any other part of the King’s Dominions …’
Section 6(2) of the 1970 Act:
‘under any law of the United Kingdom or of the Commonwealth of Australia or any State (other than the State of Victoria) or territory thereof or any other part of the Queen’s dominions’
Section 7B(2) of the 1981 Act up to enactment of the Accident Compensation Act1985:
‘under any law of, or in, any State (other than Victoria) territory or country’
Section 85(6) of the 1985 Act (as enacted)
‘under the law of any place outside Victoria’
Section 85(6) of the 1985 Act as amended in 2003 and currently
‘under the law of any place outside Victoria (whether within or outside Australia’.
This history does not suggest that, when enacting and amending the 1985 Act, Parliament intended to exclude from the applicable category damages for payments made under Commonwealth law.
Comparable Commonwealth, Territory and State legislation
There is workers’ compensation legislation in the Commonwealth, Territories and States containing provisions against double-compensation, expressed in a number of ways, including provisions like that in s 85(6) of the current Victorian Act.
In the federal sphere, the Safety, Rehabilitation and Compensation Act 1988 (Cth) provides that compensation is not payable where ‘State workers’ compensation’ is paid to an otherwise eligible worker[73] and is recoverable by the relevant authority when previously paid.[74] ‘State workers’ compensation’ is defined to mean ‘compensation recoverable under a law of a State or of a Territory, or of a foreign country relating to workers’ compensation’.[75] The Workers Compensation Act 1951 (ACT) also denies eligibility, and permits recovery, where compensation is paid under ‘the workers compensation law of an external Territory or a place outside Australia’.[76] The equivalent provisions of the Workers Rehabilitation and Compensation Act (NT) apply where compensation is paid under an ‘applicable law’, defined to mean ‘(a) a law of the Territory other than this Act; (b) a law of the Commonwealth; or (c) a law in force in a place outside the Territory’.[77]
[73]Section 118(1).
[74]Section 118(2).
[75]Section 118(6).
[76]Section 36F(1) and (2).
[77]Section 54(1)-(3), (6).
Turning to the States, the Workers Compensation Act 1987 (NSW) contains similar provisions applying to compensation paid ‘under the laws of a place other than this State’.[78] Under the Workers’ Compensation and Rehabilitation Act 2003 (Qld), the entitlement to compensation stops if payment for an injury is made ‘under an entitlement under a law of the Commonwealth or a place other than Queensland’.[79] The Workers’ Rehabilitation and Compensation Act 1986 (SA) has provisions limiting eligibility and allowing for recovery when payment has been received ‘under the laws of a place other than this State (whether within or outside Australia)’,[80] ie in the same terms as the Victorian Act. In similar provisions, the Workers’ Compensation and Injury Management Act 1981 (WA) uses the expression ‘under the laws of a place other than this State’.[81] The Workers Rehabilitation and Compensation Act 1988 (Tas) uses that same expression.[82]
[78]Section 9AC(1) and (2).
[79]Section 116(1) and (2).
[80]Section 55(1) and (2).
[81]Section 23(1) and (2).
[82]Section 31E(1) and (2).
The submission made for Mr Tzovlas in the present case about the meaning of ‘place’ in the Victorian legislation would appear to apply equally to the legislation in New South Wales, South Australia, Western Australia, and Queensland where the expression ‘under the laws of a place other than this State’ or similar words are used. The submissions would appear not to apply to the legislation in the Commonwealth, the Australian Capital Territory, the Northern Territory or Queensland because other expressions are used or Commonwealth law is specifically mentioned.
I have considered whether a coherent pattern emerges which might logically explain why a place-based definition has been used in most of the States (including Victoria) while a more specific definition has been used in the federal and Queensland legislation. I can discern no such pattern. In all of the jurisdictions, the legislative intention appears to be that compensation is not payable, and may be recovered, where the worker has been paid damages in respect of the same injury under a law of another jurisdiction. In doing so, the different formulations all give effect to a principle against double-payment of compensation. All the formulations appear to capture laws of the Commonwealth. That is how I would interpret the Victorian provision.
‘Place’ in Australian constitutional law
The submissions for the VWA relied on the provisions of the Commonwealth Places (Application of Laws) Act 1970 (Cth) to show that the Commonwealth could be a place outside Victoria. In my view, the provisions of that Act, and its constitutional foundation, help the submissions of Mr Tzovlas more than those of the VWA.
By covering cl 6 of the Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 54 Vict, c 12, ‘the Commonwealth’ means the Commonwealth of Australia under the Australian Constitution and ‘the States’ means those colonies which are parts of the Commonwealth. Therefore the States (and now the Territories) comprise the Commonwealth. Constitutionally speaking, the States federated to become one indissoluble political entity. As Barwick CJ said in Worthing v Rowell and Muston Pty Ltd,[83] the ‘Commonwealth of Australia comprehends all the territory formerly forming the colonies’. The Commonwealth of Australia is therefore both a political entity and a physical space. Physically speaking, the Commonwealth is not a ‘place outside Victoria’ because Victoria is a constituent part of the Commonwealth. Saying that the Commonwealth is a place outside Victoria is like saying that planet Earth is a place outside a continent. If one is talking in the physical sense, the idea is categorically unsound. That is the case made for Mr Tzovlas.
[83](1970) 123 CLR 89, 100 (‘Worthing’).
I would accept that the physical sense is the usual sense in which the concept of place is constitutionally discussed. Certainly that is true of Worthing, which concerned the exclusive legislative powers of the Commonwealth under s 52(i) of the Constitution. Section 52(i) provides:
Exclusive powers of the Parliament
The Parliament shall, subject to this Constitution, have exclusive power to make laws for the peace, order, and good government of the Commonwealth with respect to:
(i)the seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes …
The matter in issue in Worthing was whether State industrial health and safety legislation applied to work at a Commonwealth Air Force base. On the basis of s 52(i) of the Constitution, the plurality decided that it did not.[84] Hence the speedy enactment of the Commonwealth Places (Application of Laws) Act.
[84](1970) 123 CLR 89 (Barwick CJ, Menzies, Windeyer and Walsh JJ; McTiernan, Kitto and Owen JJ dissenting).
Barwick CJ discussed the concept of place. His Honour said:
A place, in my opinion, is an area of the earth's surface, of its subjacent soil or of its superincumbent air to the possession of which a right may by law be had or obtained.[85]
Kitto J also discussed this concept, saying:
The natural sense of the provision seems to me to show that the ‘places’ to which it refers are lands in respect of which the Commonwealth has acquired proprietary rights under the laws of the State or Territory in which they are situated. The word ‘places’ I take to be used instead of ‘lands’ because the concept of a ‘place’ is that of a location or site for a purpose – here, a site for the furtherance of public purposes of the Commonwealth.[86]
Menzies J said a place was ‘a defined area of land’.[87] Windeyer J said ‘“places” here means fixed localities’ (emphasis added).[88] It is no exaggeration to say that a predicate of the judgment in Worthing was that ‘place’ in s 52(i) is a physical concept.
[85]Ibid 97.
[86]Ibid 109.
[87]Ibid 114.
[88]Ibid 124.
It is the same with the Commonwealth Places (Application of Laws) Act. Section 3 gives this definition of ‘Commonwealth place’:
Commonwealth place means a place (not being the seat of government) with respect to which the Parliament, by virtue of section 52 of the Constitution, has, subject to the Constitution, exclusive power to make laws for the peace, order, and good government of the Commonwealth.
The purpose of that Act is to deal with the implications of the judgment in Worthing by enabling State laws to apply in Commonwealth places. This was achieved in s 4(1), which provides:
The provisions of the laws of a State as in force at a time (whether before or after the commencement of this Act) apply, or shall be deemed to have applied, in accordance with their tenor, at that time in and in relation to each place in that State that is or was a Commonwealth place at that time.
This provision is subject to s 4(2) and other provisions to which I need not refer.
It can be seen that the concept of ‘place’ as employed in s 52(i) of the Constitution is physical. As employed in the Commonwealth Places (Application of Laws) Act it is also physical. The question is, what is the concept of ‘place’ employed in s 85(6) of the Accident Compensation Act? It was to emphasise that question that I italicised the word ‘here’ in the passage from the judgment of Windeyer J in Worthing. In answering that question, it does not help to say that, under the Constitution and the Commonwealth Places (Application of Laws) Act, the Commonwealth can have physical places inside and outside Victoria. We have to examine the provisions of the Accident Compensation Act to discern what concept of place is being employed there.
Review of authorities
The parties relied on a number of authorities which can now be conveniently considered.
The meaning of the words ‘under the law of any place outside Victoria’ in the pre-2003 version of s 85(6) were considered by Emerton J in Victorian WorkCover Authority v Sharma.[89] Mr Sharma was a Victorian worker who was injured in a work-related road traffic accident in the Republic of South Africa. He received compensation under the Accident Compensation Act in respect of his injuries and subsequently settled a damages claim in South Africa. The VWA sought recovery under s 85(6) and the worker contended that the provision authorised recovery of compensation paid outside Victoria within Australia but not outside Australia.
[89][2011] VSC 641 (16 December 2011) (‘Sharma’).
Consideration of that contention took Emerton J to the 2003 amendments which inserted the words ‘whether within or outside Australia’ in parenthesis after the words ‘under the law of any place outside Victoria’ in s 85(6). The worker contended that the addition of these words indicated that the previous version of the provision did not apply to compensation obtained outside Australia.
Emerton J rejected that contention. Referring to the extrinsic materials, her Honour explained that the amendment was introduced as part of ‘cross-border arrangements’ which had been agreed between Victoria, New South Wales and Queensland in 2002.[90] The amendments were clarificatory and did not change the meaning of s 85(6). The proper interpretation of the words ‘outside Victoria’ in that provision ‘means anywhere – whether inside or outside of Australia – that is not Victoria’.[91]
[90]Ibid [74].
[91]Ibid [78].
In coming to that conclusion, Emerton J followed Dodd v Executive Air Services Pty Ltd[92] where the Full Court considered the meaning of the words ‘outside Victoria’ in s 7 of the Workers’ Compensation Act 1958. That section conferred an entitlement to compensation on workers (and their dependents) employed in Victoria where the worker was injured ‘outside Victoria’. The worker concerned was employed in Victoria as a pilot. He was killed while working in France. By reason of the reference in earlier parts of the provision to the States and Territories of the Commonwealth, the employer resisted the widow’s claim on the basis that s 7 applied to injuries suffered outside of Victoria within Australia but not outside of Australia.
[92][1975] VR 668 (‘Dodd’).
Applying the rule of beneficial interpretation of remedial legislation, Gillard, Newton and Norris JJ rejected that interpretation of s 7. In the words of Gillard J, the words ‘outside Victoria’ meant ‘the rest of the world outside Victoria’.[93]
[93]Ibid 673.
The matters in issue in Sharma and Dodd were different to the matter in issue in this case. Sharma was a recovery case under s 85(6) where the issue was whether the provision extended to recovery of compensation payable under the law of another country. Dodd was an entitlement case where the issue was whether the widow of a worker employed in Victoria but killed in France could claim compensation. The issue in the present case is whether s 85(6) permits recovery of damages paid under Commonwealth legislation in respect of an injury occurring in the airspace above Victoria during the course of Victorian employment. While Sharma and Dodd mark out certain features of the provision under consideration, neither actually determine the matter in issue.
I will say (respectfully) of Dodd that it is an excellent example of the application of the beneficial interpretation rule. As I have noted, it was an entitlement case. The provision gave effect to the central purpose of the legislation, which was the provision of compensation for injured or deceased workers and their dependents. There was no other competing purpose. The provision left two interpretations open and the court adopted the one which was favourable to the widow. The present case is very different. It concerns s 85(6), which is a recovery provision. The specific purpose of this provision is not beneficial, whereas the general purpose of the legislation is beneficial.
While s 85(6) may generally be described as a provision for the purpose of recovering double-paid compensation, it is important to note that it operates according to its own terms. It authorises recovery of the lesser amount of the compensation paid under the Accident Compensation Act or an amount equal to the damages or payment obtained in respect of the injury under the other law concerned. As Emerton J pointed out in Sharma, the damages or payment obtained under the other law is ‘not necessarily the sum of money that is ultimately paid into the injured person’s bank account’.[94]
[94][2011] VSC 641 (16 December 2011) [88].
The submissions made for Mr Tzovlas also relied on Worth v Loongana Lime Pty Ltd.[95] There the worker was injured when, during the course of his employment, the aeroplane in which he was travelling made a forced landing. He obtained capped damages of $500,000 under a settlement with the carrier on a strict liability basis under the Civil Aviation (Carriers’ Liability) Act of the Commonwealth and compensation from the employer under the Workers’ Compensation and Rehabilitation Act 1981 of Western Australia. The employer claimed the worker was not entitled to both federal damages and State compensation because s 93(1)(a) of the State Act precluded that course where the injury ‘was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof’ and the employer was not ‘negligent’.
[95](2005) 192 FLR 203 (Blaxell J).
At first instance, Blaxell J held that the worker was entitled to claim both federal damages and State compensation because s 93(1)(a) only applied where the third party liability was based on negligence.[96] Federal damages were payable on a strict liability basis. In reaching that conclusion, his Honour said that it was not fair to characterise the denial of the employer’s indemnity as permitting the worker to ‘double dip’ because the worker would ordinarily have been entitled to damages much greater than the capped amount of $500,000 which he obtained. Therefore the interpretation which his Honour preferred did not defeat the purpose of the indemnity provision.[97] The submissions made for Mr Tzovlas in the present case rely upon part of this judgment.
[96]Ibid 213 [47].
[97]Ibid 212 [41].
In Loongana Lime Pty Ltd v Worth,[98] the Court of Appeal (by a majority) overturned the judgment of Blaxell J. Steytler P (Pullin JA agreeing) held that the amount paid under the settlement with the carrier was properly to be described as ‘damages’ paid by a third person with a ‘legal liability’ to pay within the scope of the indemnity provision.[99] Special leave to appeal to the High Court of Australia was refused.[100]
[98](2006) 203 FLR 268.
[99]Ibid 272-3 [12]-[14].
[100]Transcript of Proceedings, Worth v Loongana Lime Pty [2007] HCATrans 59 (9 February 2007).
Wheeler JA dissented. In her Honour’s view, the purpose of the indemnity provision was to prevent double-recovery of damages for negligence and compensation in respect of the same injury. The worker had not obtained damages for negligence because federal liability was strict.[101]
[101](2006) 203 FLR 268, 284 [42].
In reaching that conclusion, Wheeler JA made observations as to the purpose of the indemnity provision. Her Honour said:
Finally, the appellant submitted that a reading of s 93 in the way which I have described would be unjust, in that it would offend the policy at common law, and as expressed in the WRC Act, against ‘double dipping’ by the worker. While it may be unfortunate for the appellant that there is no indemnity and no right to recover workers’ compensation from the worker, I do not accept that there is, in the present case, necessarily an unacceptable double recovery by the worker. It is, of course, often the case that a person who recovers damages in respect of an injury may receive and keep also certain benefits from other sources without offending any ‘double dipping’ principle. The issues are discussed, and examples of benefits which persons recovering common law damages are entitled to keep, are given in Redding v Lee.[102] There is no absolute prohibition at common law of any form of double recovery, or overlapping recovery. It would therefore not be surprising if the WCR Act permitted a worker in some circumstances to keep some damages, or part thereof, and workers’ compensation payments.[103]
Her Honour then referred to the statutory cap on the damages available under the federal Act:
Further, in the circumstances of the present case, it is common ground that by reason of the statutory cap under the CA Act, the amount payable by the carrier would be inadequate to compensate the worker fully for the injury he sustained. It is consistent with what might generally be regarded as the ‘beneficent purpose’ of the WCR Act that, where the statutory cap is inadequate, the worker should also be entitled to retain the benefit of compensation paid. It is not consistent with the apparent statutory policy of reducing the burden on the employer, to permit the worker to retain both sums. However the section is read, in the circumstances of the present case, one or the other of the statutory purposes will not have been achieved. There is no reason to consider that the policy against ‘double dipping’ should be given priority.[104]
[102](1983) 151 CLR 117.
[103](2006) 203 FLR 268, 285-6 [49].
[104]Ibid 286 [50].
It was submitted for Mr Tzovlas that the reasoning of Wheeler JA is applicable to his case, particularly given the severity of his injuries.
The thrust of the reasoning of Wheeler JA was that there was no double-compensation where (for example) the damages payable under the other law is inadequate by reason of a statutory cap. According to that reasoning, the application of the indemnity provision depends upon a judgment being made regarding the adequacy of the additional payment. That reasoning was not accepted by the majority of the Court of Appeal and, with respect, I cannot accept it here.
The purpose of s 85(6) of the Accident Compensation Act is to allow recovery of compensation where there has been double-payment of damages or compensation. It operates objectively according to its terms in the specified circumstances. As relevant here, the specified circumstances are that the worker obtains damages ‘under the law of any place outside Victoria’. If the worker obtains any damages under such a law, the provision applies. The amount of the damages is not relevant to the application of the provision. It does not have a shifting application depending upon the characterisation of the adequacy or otherwise of the damages or other payment. The court is not given a discretion to waive the application of the provision on such a basis.
‘Place’ in s 85(6) means a non-Victorian jurisdictional source of law
To repeat, the matter in issue is whether the words ‘under the law of any place outside Victoria (whether within or outside Australia)’ in s 85(6)(b) of the Accident Compensation Act include legislation of the Commonwealth.
The critical word is ‘place’. That noun has a number of potential meanings. According to the Oxford English Dictionary, they include a ‘particular part of space, of defined or undefined extent, but of definite situation’, the ‘portion of space actually occupied by a person or thing’, the ‘position of a body … with reference to other bodies’ and a ‘building, apartment, or spot devoted to a specific purpose’.[105] According to the Macquarie Encyclopedic Dictionary, the potential meanings include ‘a particular portion of space, of definite or indefinite extent’, some ‘position, situation, or circumstance’ and a ‘function or duty’.[106]
[105]JA Simpson and ESC Weiner (eds), The Oxford English Dictionary (Clarendon Press, 2nd ed, 1991) vol XI, 937-8.
[106]Ann Atkinson and Alison Moore (eds), Macquarie Encyclopedic Dictionary (Macquarie Dictionary Publishers, 2nd ed, 2010) 954.
According to these definitions, the word ‘place’ can be used in an ordinary and natural way to describe a physical place or a non-physical place, such as the jurisdictional source of a law (including a statutory law). According to these ordinary and natural meanings, the Commonwealth could answer the description of a ‘place’ in either of these senses.
The submissions made for Mr Tzovlas were that, in the context of s 85(6)(b), ‘place’ bears exclusively the physical meaning. That meaning must be chosen because two interpretations are open. The two interpretations are that ‘place’ is meant in the physical sense (which cannot include the Commonwealth because it is not ‘outside Victoria’) or, alternatively, ‘place’ is meant in the sense of being a non-Victorian jurisdictional source of law. As purpose of the legislation is remedial, the physical meaning must be chosen because it is the one which is favourable to the worker.
I cannot accept that it is reasonably open to interpret the word ‘place’ in s 85(6)(b) as being exclusively physical. As we have seen, the purpose of the provision is to give effect to a long-standing principle against the payment of double-compensation. To interpret ‘place’ as being exclusively physical would defeat that purpose because it would prevent the VWA from recovering payment from workers who had been paid damages under Commonwealth legislation and under the Accident Compensation Act in respect of the same injury.
In my view, s 85(6)(b) should be interpreted on the basis that the Victorian Parliament knew very well that Victoria is a State in a constitutional federation in which the Commonwealth, the States and the Territories might have legislation providing for the payment of damages for injury. The words ‘under the law of any place outside Victoria’ are perfectly apt in their generality to describe non-Victorian sources of such laws, including legislation of the Commonwealth.[107] In that regard, I would lay some stress on the word ‘of’, for it is perfectly apt to say of a law enacted in a particular jurisdiction (including the Commonwealth) that it is a law ‘of’ that ‘place’ in the sense of it being a law ‘of’ that jurisdiction.
[107]Cf McClurg v Transport Accident Commission [2010] VCAT 482 (23 April 2010) [25]-[28] (Macnamara DP) in relation to the provisions of s 42(2)(f) of the Transport Accident Act 1986 (Vic).
The words in parenthesis ‘whether within or outside Australia’ are directed to a different problem. They confirm that the category applies to all non-Victorian laws, including non-Australian laws, under which damages or other payments of the specified kind may be made.
When regard is paid to the language of s 85(6)(b) and the purpose of the provision, the meaning of the words is not ambiguous and two interpretations are not reasonably open. The provision operates to capture damages and payments of the specified kind made under laws of jurisdictions that are not Victorian, including legislation of the Commonwealth. The history of the legislation as set out above supports this interpretation.
I come to that conclusion after giving as much force as I can to the powerful remedial purposes of the Accident Compensation Act. The difficulty is that s 85(6) clearly has a non-remedial purpose. When the language of the provision is considered having regard to that purpose, its meaning is not, in my view, open to reasonable dispute. The submission for Mr Tzovlas would really have the natural and ordinary meaning of the words read down by reference to the remedial purposes of the Act. In my view, the language of the provision is too robust for that.
Conclusion
In the worker’s proceeding, Mr Tzovlas has made a claim under the Civil Aviation (Carriers’ Liability) Act 1959 (Cth). In the recovery proceeding, the VWA seeks to recover the compensation paid to Mr Tzovlas under the Accident Compensation Act 1985 (Vic) up to the amount of the damages paid under the Civil Aviation (Carriers’ Liability) Act. The preliminary question is whether damages paid pursuant to the claim under that Commonwealth Act would constitute damages paid ‘under the law of any place outside Victoria (whether within or outside Australia)’ as specified in s 85(6)(b) of the Accident Compensation Act such that the VWA is entitled to bring the recovery proceeding. For the reasons given in this judgment, the answer to the preliminary question is ‘yes’.
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