Woolmer and Military Rehabilitation and Compensation Commission
[2007] AATA 1506
•4 May 2007
CATCHWORDS – VETERANS’ AFFAIRS – compensation – jurisdiction question – whether applicant can claim under both the Safety, Rehabilitation and Compensation Act and Veterans’ Entitlements Act – applicant not obliged to choose on particular facts – jurisdiction
PRACTICE AND PROCEDURE – COSTS - whether Tribunal has power to award costs to applicant successful on interlocutory or interim proceeding – meaning of “proceeding” – no power
Acts Interpretation Act 1901 s 13
Administrative Appeals Tribunal Act 1975 ss 3(1), 25(1)
Commonwealth Employees’ Rehabilitation and Compensation Act 1988 s 5(10)
Military Compensation Act 1994 s 4(b), 4(c), 4(d), 5
Military Rehabilitation and Compensation Act 2004 s 3
Safety Rehabilitation and Compensation Act 1988 ss 4(1), 4(12), 4A, 4AA(1) and (2), 5(7), 5(10), 5(10A), 5(10B), 5(10C), 5(11), 5(12), 50(3)(b), 52A(4), 60, 64, 66, 67(1)-(4), 67(1A), 67(8), 67(8A), 67(8B), 67(9)
Veterans’ Affairs Legislation Amendment (Budget and Compensation Measures) Act 1997 s 3
Veterans’ Entitlements Act 1986 ss 5C(ii), 68, 69(1)(c), 70(1), 70(5(a), 70A, 74(8), 74(9)
Elazac Pty Ltd v Commissioner of Patents (1994) 125 ALR 663
Re Shahin Enterprises Pty Ltd and Registrar of Trade Marks and Exxon Mobil Oil Corporation (2003) 76 ALD 272 [2003] AATA 765
Webster v McIntosh & Daff (1980) 32 ALR 603; 49 FLR 317
DECISION AND REASONS FOR DECISION [2007] AATA 1506
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2005/852
VETERANS’ APPEALS DIVISION )
Re ROSEMARY WOOLMER
Applicant
AndMILITARY REHABILIATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 4 May 2007
Place: Melbourne
Decision:The Tribunal decides that:
1.the applicant is not precluded from proceeding with her late husband’s claim for compensation under the Safety, Rehabilitation and Compensation Act 1988; and
2.it has no power to make an order for costs on an interlocutory or interim proceeding.
S A FORGIE
Deputy President
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2005/852
GENERAL ADMINISTRATIVE DIVISION )
Re ROSEMARY WOOLMER
Applicant
AndMILITARY REHABILIATION AND COMPENSATION COMMISSION
Respondent
Tribunal: Deputy President S A Forgie
Place: Melbourne
Date: 29 October 2007
CORRIGENDUM TO DECISION [2007] AATA 1506
The Tribunal amends its decision and reasons for decision published on 4 May 2007 as follows:
Paragraph 8
Insert the words “s 3 of” in the second to last line before the words “the MRC Act”.
Paragraph 8
Delete the last line and replace with:
“That section commenced operation on 1 July 2004.”
Paragraph 30
Insert the words “s 3 of” in the ninth line before “the MRC Act” and change the date from “27 April” to “1 July”.
S A FORGIE
Deputy President
REASONS FOR DECISION
Mrs Rosemary Woolmer has continued her late husband’s claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) in respect of metastatic melanoma. The respondent, Comcare, has made a reviewable decision that she is not entitled to continue her claim under the SRC Act as her husband had claimed and been granted a disability pension under the Veterans’ Entitlements Act 1986 (VE Act) in respect of metastatic melanoma. In addition, Mrs Woolmer has since made a successful claim under the VE Act in respect of her late husband’s death from metastatic melanoma. In essence, Comcare’s argument is that Mrs Woolmer may not claim under both the SRC Act and the VE Act but must choose one or the other. She and her late husband have already chosen to make the claim under the VE Act. Comcare relied on s 4AA of the SRC Act excluding certain injuries and diseases from its operation by reference to their coming within the scope of the Military Rehabilitation and Compensation Act 2004 (MRC Act). I have decided that the exclusion in s 4AA does not affect Mr Woolmer’s, and so Mrs Woolmer’s rights to make a claim as they are preserved by s 5(10B).
In relation to Mrs Woolmer’s application for costs arising from this proceeding, I have decided that the Tribunal does not have power to grant that application as it does not come within its powers to make costs orders given by s 67 of the SRC Act. The proceeding in relation to which costs are claimed is only an interlocutory or interim application. It is not a proceeding within the meaning of s 67 as it is not the hearing of an application for review of Comcare’s reviewable decision leading to an outcome for Mrs Woolmer as specified in that section.
BACKGROUND
Mr Woolmer, who was born on 4 May 1964, enlisted in the Royal Australian Navy (RAN) on 17 November 1981. He served until 30 June 2004. During that time, he served on HMAS Sydney in support of the US Navy during the Gulf War from 20 November 1990 until 19 April 1991.
On 20 December 2004, Mr Woolmer lodged a claim under the SRC Act in relation to metastatic melanoma suffered on 6 July 2001 due to his being exposed to solar and chemical radiation in Kuwait during the first Gulf War.[1] A delegate of the Military Rehabilitation and Compensation (MRCC) disallowed Mr Woolmer’s claim on 18 January 2005 on the basis that it was possible, but not probable, that Mr Woolmer’s military service had contributed to a material degree to the causation, aggravation, acceleration or recurrence of the disease.[2] After Mrs Woolmer had asked that the MRCC reconsider its decision and had filed supporting medical material, it affirmed its decision on 18 January 2005.[3]
[1] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents) at 106-113
[2] T documents at 129-130
[3] T documents at 377-379
On 22 December 2004, Mr Woolmer lodged a claim for a disability pension under the VE Act in relation to metastatic malignant melanoma. His claim was based on his exposure to the sun during his service in the Arabian Gulf patrolling the waters off Kuwait during the Gulf War and upon his inability to obtain appropriate clinical management at that time. The Repatriation Commission (Commission) accepted his claim on 24 December 2004.
Mr Woolmer died on 10 January 2005. On 7 February 2005, Mrs Woolmer lodged a claim under the VE Act in respect of her husband’s death. The Commission accepted her claim on 11 February 2005 with effect from 11 January 2005.
JURISDICTIONAL ISSUE: Legislative Background
The SRC Act
In the broadest of terms, the SRC Act makes provision for rehabilitation to be given and compensation to be paid to certain employees in respect of injuries and diseases arising out of their employment with the Commonwealth, a Commonwealth authority or a licensed corporation. A member of the Defence Force is such an employee[4] but the entitlement of such a person to compensation is qualified in two ways.
[4] SRC Act ss 4(1) and 5(2)(b)
The first qualification arises under s 4AA when certain injuries and diseases are excluded from the operation of the SRC Act by reference to their coming within the scope of the MRC Act. The MRC Act provides for compensation and other benefits to be provided for current and former members of the Defence Force who suffer a service injury or disease.[5] A person who is a member of the Defence Force is a “member” for the purposes of the MRC Act. Clearly, such a person is also an “employee” for the purposes of the SRC Act but is not entitled to claim entitlements under both pieces of legislation. This is the effect of s 4AA of the SRC Act. In broad terms, s 4AA provides that an employee, who is also a member for the purposes of the MRC Act, is not taken not to have suffered an injury or contracted a disease, or an aggravation of either in certain circumstances. The first arises if the employee is a member within the meaning of the MRC Act. The second arises if the injury or aggravation is first suffered or the disease or aggravation is first contracted on or after the commencement of that legislation. The third arises if the injury or its aggravation arose out of or in the course of employment or the disease or its aggravation was contributed to in a material degree by the employee’s employment as a member and the employment occurs either on or before the MRC Act commenced operation or before, and on or after, that date.[6] The MRC Act commenced operation on 27 April 2004.
[5] MRC Act s 3
[6] SRC Act, ss 4AA(1) and (2)
The second qualification to the entitlement of a member of the Defence Force under the SRC Act is achieved by the exclusion of certain periods of service from the application of the legislation. Section 5(10) provides that:
“Subject to subsections (10A), (10B) and (10C), this Act does not apply in relation to service of a member of the Defence Force in respect of which provision for the payment of pension is made by:
(a)the Veterans’ Entitlements Act 1986; or
(b)…”
Note:Compensation and other benefits might also be available for a member of the Defence Force under the MRCA[[7]]. Generally, an injury, disease or death that is covered by that Act would not be covered by this Act (see section 4AA and subsection 6A(2A) of this Act).”
[7] Military Rehabilitation and Compensation Act 2004
The three qualifications referred to in s 5(10) are:
“(10A) Subsection (10) does not apply in relation to a veteran:
(a)who has rendered operational service on or after the day on which the Military Compensation Act 1994 commences; and
(b)for whom provision for the payment of pension in respect of service rendered by the pension is made by Part II of the Veterans’ Entitlements Act 1986.
(10B)Subsection (1) does not apply in relation to a member of the Defence Force who has rendered service in respect of which provision for the payment of pension is made by Part IV of the Veterans’ Entitlements Act 1986.
(10C)Despite subsection (10), this Act applies to a claim lodged before the commencement of this subsection for compensation in respect of an injury of a member of the Defence Force that arose out of, or in the course of, any service that:
(a)the member rendered before 13 May 1997; but
(b)only became on that day service in respect of which provision for the payment of pension is made by the Veterans’ Entitlements Act 1986 (because of the amendments made by that Act by Part 1 or 8 of Schedule 1 to the Veterans’ Affairs Legislation Amendment (Budget and Compensation Measures) Act 1997).”
The Veterans’ Entitlements Act 1986
On behalf of Mrs Woolmer, Mr White relied on the exception in s 5(10B). That means that I must have regard to the Part IV of the VE Act because the exception only comes into play if Mr Woolmer “… rendered service in respect of which provision for the payment of pension is made by Part IV …” of that legislation. Mr White took me to the meaning given to “defence service” in s 68 of the VE Act but I do not think that is the correct starting point. Section 68 is concerned with interpretation of particular expressions. What s 5(10B) of the SRC Act requires me to find is whether provision is made for the payment of a pension by Part IV of the VE Act. In light of that, it seems to me that the starting point is s 69.
Section 69(1)(c) of the VE Act applies to Mr Woolmer’s circumstances. It provides that:
“(1) Subject to this section, where a person:
(a)has served in the Defence Force for a continuous period that commenced on or after 7 December 1972 and before the terminating date; or
(b)is serving in the Defence Force on or after the terminating date and has so served continuously since a date before that date;
this Part applies to the person:
(c)if the person:
(i)has served on a continuous full-time service as a member of the Defence Force after 6 December 1972; and
(ii)has, whether before or after that date, completed 3 years’ effective full-time service as such a member; …”
The expression “continuous full-time service” is defined, in so far as it is relevant to Mr Woolmer’s circumstances, as “service in the Military Forces of the Commonwealth of the kind known as continuous full-time military service”.[8] The expression “effective full-time service” means any period of continuous full-time service of the member other than those periods specified in s 68 in relation to that expression. They relate to certain periods greater than 21 days and certain periods of study which are not relevant in this case.
[8] VE Act, s 5C(ii)
Section 70(1) of the VE Act provides that:
“Where:
(a)the death of a member of the Forces … was defence-caused; or
(b)a member of the Forces … is incapacitated from a defence-caused injury or a defence-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c)in the case of the death of the member – pension by way of compensation to the dependants of the member; or
(d)in the case of incapacity of the member – pension by way of compensation to the member;
in accordance with this Act.”
The meaning of a “defence-caused” death, injury or disease is the subject of ss 70(4) – (8) of the VE Act. For the purposes of this case, I will refer only to s 70(5)(a), which provides:
“For the purposes of this Act, the death of a member of the Forces … shall be taken to have been defence-caused, an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
(a)the death, injury or disease, as the case may be, arose out of, or was attributable to any defence service …, as the case may be, of the member;”.
The term “defence service” is defined in s 68(1). It reads in part:
“defence service means:
(a)continuous full-time service rendered as a member of the Defence Force on or after 7 December 1972 and before the terminating date;
(b)in the case of a person who:
(i)was rendering continuous full-time service as a member of the Defence Force immediately before the commencement of this Act;
(ii)continued so to render continuous full-time service until and including the day immediately before the terminating date; and
(iii)was, immediately before the terminating date, bound to render the continuous full-time service as such a member for a term expiring on or after the terminating date;
includes the continuous full-time service rendered by the person as a member of the Defence Force on and after the terminating date and before:
(iv)the expiration of that term or, if that term is deemed to have been extended by subsection (4), (5) or (6), the expiration of the extension of that term; or
(v)the lawful termination of the person’s service as a member of the Defence Force otherwise than by reason of the expiration of the term for which the person is bound to serve;
whichever occurs first; and
(c)hazardous service rendered before or after that terminating date;
but does not include any period of peacekeeping service.”
The “terminating date” referred to in this section is the date on which the Military Compensation Act 1994 commenced i.e. 7 April 1994.[9]
[9] VE Act, s 68(1)
The meaning given to “defence-caused” by s 70(4) in the VE Act is qualified by s 70A. I will refer only to the qualification set out in s 70A(1):
“(1) An injury, disease or death of a member of the Forces, or any other member, or former member of the Defence Force, is taken not to be defence-caused if:
(a)the injury is sustained, the disease is contracted, or the death occurs, on or after the MRCA commencement date; and
(b)the injury, disease or death either:
(i)relates to service rendered by the member on or after that date; or
(ii)relates to service rendered by the member before, and on or after, that date.
Note 1:After the MRCA commencement date, compensation is provided under the MRCA (instead of this Act) for such injuries, diseases and deaths.
Note 2:The other members (or former members) of the Defence Force mentioned in subsection (1) are or were also members of a Peacekeeping Force.”
If a person has suffered incapacity from a defence-caused injury or disease or defence-caused death, the pension payable in respect of it is the pension calculated under Division 3 of Part IV of the VE Act. Section 73 of that Division provides that the rate of that pension is calculated in accordance with Part II of the legislation as if the reference to war-caused were a reference to defence-caused and a reference to a veteran is read as a reference to a member of the Defence Forces or of the Peacekeeping Forces.
Division 4 of Part IV is concerned with the payment of a pension under the VE Act and of compensation or damages from other sources in respect of a defence-caused death or incapacity from a defence-caused injury or disease. The effect of ss 74(8) and (9) is that, if the rate per fortnight at which compensation is payable in respect of the death or incapacity equals or exceeds the rate at which pension is payable under Part IV, then pension is not payable under that Part to any person in respect of the death or incapacity.
JURISDICTIONAL ISSUE: consideration
On the facts forming the background to this case, I am satisfied that Mr Woolmer has rendered “defence service” within the meaning of s 68 of the VE Act. He comes within paragraph (a) of the definition of “defence service” as his service commenced on 17 November 1981, and so after 7 December 1972, and before the terminating date on 7 April 1994.
He also comes within paragraph (b) of the definition. Although the expression “continuous full-time service” is defined in somewhat circular terms, there is no question that Mr Woolmer was rendering continuous full-time service as a member of the Defence Force immediately before the VE Act commenced on 22 May 1986 so that he met the requirements of paragraph (b)(i) of the definition.
Mr Woolmer continued to render continuous full-time service until and including 7 April 1994 and was bound to do so until a date after 7 April 1994. Therefore, he met the requirements of paragraphs (b)(i) and (ii) of the definition of “defence service”. As the facts are presented, Mr Woolmer was also bound to render continuous full-time service for a term expiring after 7 April 1994. Therefore, by virtue of paragraph (b) of the definition, Mr Woolmer’s defence service extended beyond the terminating date and up until 30 June 2004.
As he had “defence service”, Mr Woolmer had an entitlement to a pension under Part IV of the VE Act if his disease arose out of or was attributable to his defence service i.e. that his disease was “defence-caused”. That meant that he had service in respect of which provision was made for a pension under the VE Act. Had s 5(10) of the SRC Act been unqualified, this would have meant that it would have excluded the application of that legislation in relation to that service. It is not unqualified, though because it is Part IV of the VE Act that provides for the payment of a pension in respect of Mr Woolmer’s service. That qualification is set out in s 5(10B).
On their face and read alone, the clear meaning of the provisions is that Mr Woolmer was not prohibited by s 5(10) from lodging a claim for compensation under the SRC Act. The effect of Mr Wallace’s submission on behalf of the MRCC was that I should “read down” what I see to be the plain meaning of the provisions of ss 5(10) and 5(10B). I should do so by reading the provisions as giving a person such as Mr Woolmer a choice whether to apply under the SRC Act or the VE Act but not as permitting that person to apply under both. Mr Wallace referred to a passage from the Second Reading Speech of the then Minister for Veterans’ Affairs the Military Rehabilitation and Compensation Act 2004:
“ …
This bill sets in place the most comprehensive changes in military compensation legislation in nearly two decades.
From the commencement date, planned for 1 July 2004, the new scheme will cover all injuries or conditions arising from service in the Australian Defence Force (ADF).
This bill has no impact on current veterans or war widows who are receiving benefits under the Veterans’ Entitlements Act 1986 (VEA). Current beneficiaries under the Safety Rehabilitation and Compensation Act 1988 (SRCA) will continue to receive their benefits under that Act.
…”[10]
[10] Hansard, House of Representatives, 4 December 2003 at 23806 - 23807
On the face of the Minister’s Second Reading Speech, there may be a clear conflict between the effect of ss 5(10) and (10B) and the intention of the legislation. Whether there is depends upon how the second paragraph in the passage from the Second Reading Speech is meant to be understood. Before commenting on that aspect, ss 5(10) – (10C) should be understood in context.
That context begins with the SRC Act as it was when it was known as the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (1988 Act). Section 5(10) then provided that:
“This Act does not apply in relation to service of a member of the Defence Force in respect of which provision for the payment of pension is made by:
(a)the Veterans’ Entitlements Act 1986 (other than Part IV); or
(b)the Papua New Guinea (Members of the Forces Benefits) Act 1957.”
Amendments relevant to this case were made to s 5 by the Military Compensation Act 1994 (MC Act 1994). They amended s 5(10) to qualify the operation of s 5(10) by making it subject to ss 5(11) and (12)[11] and omitting the reference in s 5(10)(a) to “other than Part IV”.[12] The MC Act then added new ss 5(11) and (12) to the SRC Act.[13] They were later renumbered as ss 5(10A) and (10B).
[11] MC Act, s 4(b)
[12] MC Act, s 4(c)
[13] MC Act, s 4(d)
The Second Reading Speech made by the then Minister for Veterans’ Affairs in introducing the MC Act 1994 reads in part:
“This measure, to establish a Military Compensation Scheme for members of the Defence Force, can be viewed against the recent history of compensation measures for that Force. In 1972, benefits under the Repatriation Act, which was originally designed for members on active service, were made available to Defence Force personnel on peacetime service. This cover was in addition to, but offset by, normal Commonwealth compensation cover. The Veterans’ Entitlement Act, which replaced the Repatriation Act in 1986, provides for a continuation of this dual entitlement for members on peacetime service, but only until such time as a Military Compensation Scheme is established.
In recognition of the special nature of Defence Force peacetime service this Bill establishes a Military Compensation Scheme which will provide members with compensation and rehabilitation benefits available under the Safety Rehabilitation and Compensation Act, together with the following additional benefits: cover for the unintended consequences of medical treatment provided at Commonwealth expense, and, where members are discharged within 45 weeks of the date of an injury or illness that gives rise to compensation, supplementation of any earning to ensure payment equivalent to the member’s normal defence salary up to 45th week point. In addition, cadets, non-members with honorary rank, philanthropic representatives and ex-members on discharge training will be provided with cover under the enhanced Safety Rehabilitation and Compensation Act.
Although cover under the Veterans’ Entitlement Act is to cease for Defence Force members on peacetime service, the Government recognises that significant numbers of these members are already eligible for benefits under that Act. These personnel will retain their choice of coverage for any period of entitlement that has arisen under the Veterans’ Entitlement Act before commencement of the military compensation scheme.
The Government also recognises that the Military Compensation Scheme will be attractive to the non-peacetime categories of operational, peacekeeping and hazardous service, even thought it was conceived primarily for Defence Force members rendering peacetime service. Because of its significant lump sum and rehabilitation benefits, which are not available under the Veterans’ Entitlement Act, there will be situations where the provisions of the Military Compensation Scheme would be more appropriate to an individual’s personal circumstances than those of the Veterans’ Entitlement Act. That is not to say that the latter is in any inadequate – the point is that its emphasis is on medical care and pensions rather than the lump sum and rehabilitation benefits available under compensation legislation.
A key feature of the Military Compensation Scheme, therefore, is that Defence Force members on operational, peacekeeping or hazardous service will be able to choose between Veterans’ Entitlement Act coverage or the enhanced Safety Rehabilitation and Compensation Act coverage. This entitlement to choice will provide a balance in the level of benefits provided for the various categories of service in that it acknowledges the greater risk and the difficulty association [sic] with non-peacetime service.”[14]
[14] Hansard, House of Representatives, 15 December 1993 at 4092
Section 5(10C) of the SRC Act was inserted in s 5 by the Veterans’ Affairs Legislation Amendment (Budget and Compensation Measures) Act 1997 (VAL Amendment Act 1997) and s 5(10) amended to qualify its operation by reference to ss 5(10A), (10B) and (10C).[15] The Second Reading Speech introducing the Bill leading to this Act does not specifically touch upon the insertion of s 5(10C) but its reason is clear. The then Minister for Veterans’ Affairs indicated in his Second Reading Speech that the intention was to make the disability pension and benefits available under the VE Act to a wider range of veterans who had served in various overseas deployments in the post World War II period. It is clear that s 5(10C) was intended to preserve the claims of those who had made them under the SRC Act before 13 May 1997 but that thereafter claims would have to be made under the VE Act.
[15] VAL Amendment Act 1994, s 3, Schedule 3
The pattern of amendments before those in 2004 show that there have been changes in policy direction regarding entitlements for compensation in respect of what would otherwise be regarded as defence-caused death, injuries or diseases. On each occasion, Parliament has specifically preserved the rights of specific groups of those affected by the amendments. It has done so up until a date at or some time shortly before the commencement of the relevant amendment. Parliament continued to do that when it introduced the MRC Act. The effect of s 4AA makes it clear that the SRC Act does not apply where an injury or disease, or an aggravation of either, was first suffered on or after the commencement of the MRC Act on 27 April 2004. If it was first suffered after that date, a person did not have a right to apply under the SRC Act because that injury or disease would not be taken to be one for the purposes of the legislation. In most cases, a person would have no option but to apply under the MRC Act.
Section 4AA does not refer to an injury or disease first suffered before the commencement of the MRC Act. When read with ss 5(10), (10A), (10B) and (10C), its omitting to do so reinforces the view that the amendments made in 2004 were not intended to affect the rights of employees and members of the Defence Force preserved over the years by earlier amending legislation.
Although the notes in the SRC Act do not form part of it,[16] I note that they support the conclusion that I have reached. The heading to s 4AA states that “Most injuries for members of the Defence Force no longer covered by this Act.”[17]The note to s 5(10) reads in part that “Generally, an injury, disease or death that is covered by that Act would not be covered by this Act (see section 4AA and subsection 6A(2A) of this Act).”[18] Both are couched in terms that recognise exceptions to what would otherwise be absolute prohibitions on the application of the SRC Act.
[16] Acts Interpretation Act 1901, s 13
[17] Emphasis added.
[18] Emphasis added.
The heading and the note also support one of the two ways in which the Second Reading Speech can be read. One way in which it can be read is that, from the commencement of the MRC Act, it applies to all injuries or conditions regardless of when they occurred or when a claim was made in relation to them. Having read the SRC Act as a whole, I prefer the second interpretation that is open. That is to say, from the commencement date of the MRC Act, the new scheme it established would cover all injuries or conditions arising from service in the Australian Defence Force after that commencement date.
It follows from my conclusion that I consider that Mrs Woolmer is not precluded from proceeding with her late husband’s claim for compensation under the SRC Act.
COSTS ISSUE
Mr White submitted that, if I were to reach the conclusion that I have, I should also make an order for costs under s 67 of the SRC Act. In support of his submission, he referred to s 67(8A) of the SRC Act, which gives the Tribunal power to make a costs order in “proceedings instituted by the Commonwealth”. A “proceeding” under Part VI is a reference to the making of an application to the Tribunal. That is the effect of s 4(12) of the SRC Act. That reference draws in the definition of a “proceeding” given in s 3(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act) because the SRC Act was enacted in the knowledge of the provisions of the AAT Act. Therefore, a reference to a “proceeding” includes a reference to an incidental application made in the course of, or in connection with an application to the Tribunal. Mr Wallace submitted that the Tribunal’s power to award costs is limited to circumstances in which the Tribunal has heard and determined an application for review (i.e. so “proceedings”) instituted by the Commonwealth. I agree.
Part VI of the SRC Act is concerned with the reconsideration and review of determinations. Once a determination has been reconsidered, the decision given as a result of that reconsideration is known as a “reviewable decision”.[19] An application may be made to the Tribunal for review of a reviewable decision by the person in respect of whom the determination is made (the claimant) or, if the decision affects any one of them, any of the following: the Commonwealth, a Commonwealth authority or a licensed corporation. That is the effect of s 64(1). Section 64(3) expressly prevents any other person from making an application for review.
[19] SRC Act, s 60(1)
Section 67 is concerned with costs of proceedings instituted in the Tribunal. The general position is that:
“Subject to this section, the costs incurred by a party to the proceedings instituted under this Part [VI] in respect of that reviewable decision shall be borne by that party.”[20]
[20] SRC Act, s 67(1)
There are qualifications to the general position. Section 67(2), for example, makes provision for an exception where a proceeding instituted under Part VI in respect of a reviewable decision in relation to a determination is rendered abortive because there has been a reconsideration varying or revoking that determination. Subject to the qualifications in ss 67(3) and (4), the responsible authority is liable to reimburse the claimant for costs reasonably incurred by the claimant in connection with that proceeding.
The identity of the “responsible authority” is ascertained by reference to whom the determination affected. If it affected the “Commonwealth or a Commonwealth authority” other than a licensed authority, the responsible authority is Comcare.[21] If it affected a Commonwealth authority or a corporation holding a licence under Part VIII authorising it to accept liability for claims in respect of which the determination is made, it is that authority or corporation.[22] If it holds such a licence but without that authority, it is Comcare.[23]
[21] SRC Act, s 67(1A)(a)
[22] SRC Act, s 67(1A)(b)
[23] SRC Act, s 67(1A)(c)
The expressions “Commonwealth” and “Commonwealth authority” need to be understood a little more. They are defined in s 4(1) of the SRC Act. A “Commonwealth authority” has five different meanings given to it. Four are founded in its being a body corporate. The fifth is that it is the Australian Capital Territory and that a declaration has been made under s 4A in respect of it. The expression “Commonwealth” is given an expanded meaning. Section 4(1) provides that the word:
“… in relation to persons employed by a Commonwealth authority, has the additional meaning given by s 5(7).”
Section 5(7) provides that:
“For the purposes of the application of this Act in relation to a person employed by a Commonwealth authority, references in this Act to the Commonwealth shall be read as references to that authority.”
Section 67(8) is concerned with costs of proceedings incurred by the claimant when those proceedings have been instituted by that claimant. It provides that:
“Where, in any proceedings instituted by the claimant, the Administrative Appeals Tribunal makes a decision:
(a) varying a reviewable decision in a manner favourable to the claimant; or
(b) setting aside a reviewable decision and making a decision in substitution for the reviewable decision that is more favourable to the claimant than the reviewable decision;
the Tribunal may, subject to this section, order that the costs of those proceedings incurred by the claimant, or a part of those costs, shall be paid by the responsible authority.”
Section 67(8A) of the SRC Act is concerned with the claimant’s costs of proceedings instituted by the Commonwealth. It provides that:
“Subject to this section, the Administrative Appeals Tribunal may order that the costs incurred by the claimant of any proceedings instituted by the Commonwealth be paid by:
(a)if the Tribunal varies the relevant reviewable decision in a manner less favourable to the claimant, or sets aside the relevant reviewable decision and substitutes a decision that is less favourable to the claimant – Comcare; or
(b)in any other case – the Commonwealth.”
Section 67(8B) makes a similar provision in relation to “proceedings instituted by a licensed authority” in which the Tribunal “… affirms the reviewable decision or varies that decision in a manner more favourable to the claimant, or sets aside the relevant reviewable decision and substitutes a decision that is more favourable to the claimant …”. Section 67(9) provides that the Tribunal “shall … order that the costs of the proceedings before it incurred by the claimant …” be paid by the responsible authority when the Tribunal “… gives a decision setting aside a reviewable decision and remitting the case for re-determination by the determining authority …”.
I do not accept that I should give the word “proceedings” used in s 67(8A) the meanings given to the word “proceeding” in s 3(1) of the AAT Act. Quite apart from their being slightly different words, it is inappropriate to read the meanings given to a word in one enactment to the same word in another. Just as it is generally inappropriate to refer to regulations to glean Parliament’s intention when enacting the Act under which they have been made and which is to be interpreted,[24] it is generally inappropriate to do so when interpreting two separate enactments.
[24] Webster v McIntosh& Daff (1980) 32 ALR 603 at 606 per Brennan J, with whom Deane and Kelly JJ agreed.
There are exceptions to the general rule in the case of regulations and the enactment under which they are made. One occurs when regard must be had to both an Act and the delegated legislation made under it in order to ascertain the nature of a scheme. Another occurs where an Act and the delegated legislation is prepared contemporaneously and establish an interdependent regime.[25] Assuming that a similar principle applies in relation to two enactments, I do not consider that it can assist me in this case. The AAT Act and the SRC Act do not represent a situation in which a single framework has been built on the basis of contemporaneously prepared legislation. Unlike the Trade Marks Act 1995 and the Trade Marks Regulations 1995, for example, this is not a case in which it can be said:
“The Regulations contained the detail of the framework of the scheme of regulation set out in the Act and did so in keeping with the Minister’s Second Reading Speech that:
‘In keeping with modern legislative drafting practice, the bill sets out the guiding principles and general framework of the new trade mark system, with much of the detail devolved to the regulations.’”[26]
[25] Pearce and Geddes, Statutory Interpretation in Australia, 5th edition, 2001, paragraph 3.37 and cases referred to therein.
[26] Re Shahin Enterprises Pty Ltd and Registrar of Trade Marks and Exxon Mobil Oil Corporation (2003) 76 ALD 272 [2003] AATA 765 at 289; [64] and see also Elazac Pty Ltd v Commissioner of Patents (1994) 125 ALR 663 at 666-667 in which Heerey J decided that the Patents Act 1990 provided the framework on which the contemporaneously prepared Patents Regulations 1990 built a detailed regime.
The AAT Act certainly establishes the Tribunal so that it may review certain decisions. It establishes a tribunal and specifies its powers. If the AAT Act stood alone, that would be all there would be. The Tribunal would exist and would have powers but would be unable to exercise those powers. That is because the AAT Act does not specify any decisions in relation to which the Tribunal may exercise its powers. That is left to other enactments to provide that applications may be made to the Tribunal for review of decisions they specify.[27]
[27] AAT Act, s 25(1)
Those other enactments are not made contemporaneously with the AAT Act. They have two aspects. One relates to the specification of the decisions that are reviewable by the Tribunal and the consequences of that review. The other relates to the manner of the review in the Tribunal. In relation to the latter, a particular enactment may build on or alter the framework provided by the AAT Act. In view of that and in addition to the context of the enactment itself, it may be appropriate to have regard to the provisions of the AAT Act in interpreting particular provisions modifying or altering the provisions of the AAT Act in so far as they apply to the review of particular decisions.
In relation to the former aspect of those other enactments, each enactment takes advantage of the framework provided by the AAT Act but does not build on, or alter, it. Instead, it establishes its own framework and criteria specifying the decisions that may be reviewed and the consequences of that review. These are not matters that are the concern of the AAT Act for all that matters to it is that there be an enactment specifying decisions that the Tribunal may review. In view of that, it is not appropriate to have regard to terms used in the AAT Act to interpret terms used in another enactment based in a different, albeit complementary, framework. What the AAT Act does not provide is a framework for the consequences of its review of the specified decisions.
A section such as s 67 of the SRC Act relating to the payment of costs provides for the consequences of review. On the view I have taken of such a provision, the terms it uses cannot be interpreted by reference to the definitions of those terms in the AAT Act.
That leaves me to consider the meaning of the word “proceedings” without assistance from the AAT Act. The word is not defined in the SRC Act and it is used with various meanings throughout the SRC Act. For example, in s 50(3)(b), the word is used where a claim for damages is before a court and the word “proceedings” is used with reference to that claim. In s 52A(4), it is used in the context of an action for non-economic loss brought by an employee against an employer or another employee of the employer. It is used to refer to the action and its conduct although it also refers specifically to a “proceeding” if the action is before a court.
The expression “proceeding under Part VI” has the meaning given it in s 4(12).[28] That sub-section provides that:
“A reference in this Act to the institution of a proceeding under Part VI in respect of a reviewable decision is a reference to the making of an application to the Administrative Appeals Tribunal for review of that decision.”
[28] SRC Act, s 4(1)
The expression “proceeding under Part VI” has been used in s 26(4)(b) to defer payment of an amount of compensation that would otherwise be payable where “a proceeding in respect of such a determination [that Comcare has been requested to review] has been instituted under Part VI.” Although not worded in precisely the same way, the substance of the opening words of s 60(2) is the same. I have set the sub-section out above but it specifies “For the purposes of this Part, the parties to proceedings instituted under this Part …”. “This Part” is Part VI and so the definition of the expression “proceeding under Part VI” is applicable. That means that, for the purposes of Part VI, the parties to the application to the Tribunal for review of the reviewable decision are specified by s 60(2). Similarly, the modifications of the AAT Act made in s 66 of the SRC Act in relation to evidence must be read as applying to a situation in which a claimant has made an application to the Tribunal for review of a reviewable decision. That arises from the fact that s 66(1)(a) makes those modifications where a claimant has “instituted proceedings under this Part” and s 66(2) refers to “proceedings instituted under this Part”.
The general provision relating to costs must be interpreted in the same way. That is s 67(1) and it refers to “the costs incurred by a party to proceedings instituted under this Part”. That Part is Part VI and so s 67(1) is referring to the costs incurred by a party to an application to the Tribunal. Section 67(2) uses the same expression in dealing with costs where a determination is rendered abortive by a subsequent reconsideration with the same meaning.
Sections 67(8) to (9) do not refer to the proceedings’ being “instituted under this Part” but it is clear from their place in s 67 that the reference to “proceedings” is to proceedings instituted under Part VI and so to the making of an application to the Tribunal. Each of those sub-sections qualifies the general principle in s 67(1) that the costs incurred by a party to proceedings instituted under Part VI in respect of a reviewable decision, and so by a party to the application to the Tribunal for its review, shall be borne by that party. The general principle does not apply to interlocutory or incidental applications to that application for review. The wording of each of the qualifications makes it clear that neither do they. Each refers to a decision of the Tribunal that is made after it has considered the merits of the reviewable decision and made a decision regarding those merits. A decision regarding an interlocutory or incidental application does not lead to such a decision. It follows that the “proceedings” referred to in each of ss 67(8) to (9) is a reference to the application made to the Tribunal for review of the reviewable decision.
Turning to s 67(8A) specifically, the opening words are referring to the Tribunal’s power to make an order for costs incurred by a claimant of proceedings instituted by the Commonwealth and so of an application for review of a reviewable decision instituted by the Commonwealth. Paragraph 67(8A)(a) deals with the situation in which the decision on review of the merits of the reviewable decision is less favourable to the claimant. It does not deal with circumstances in which the Tribunal affirms the reviewable decision or sets aside the reviewable decision and substitutes another more favourable to the claimant. It seems to me that these circumstances are covered by the words of s 67(8A)(b) i.e. “in any other case – the Commonwealth”. Those words are a reference to an outcome not covered by s 67(8A)(a) but being an outcome of proceedings, and so an application for review, instituted by the Commonwealth. They cannot be stretched to cover an interlocutory or incidental application.
For these reasons, I have decided that I do not have power to make an order for costs.
I certify that the fifty-five preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ...............................................................
Jayne Rathjen Associate
Date of Hearing 4 April 2007
Date of Decision 3 July 2007
Counsel for the Applicant Eugene White
Solicitor for the Applicant Greg Isolani
Counsel for the Respondent John Wallace
Solicitor for the Respondent Shelley Johnson
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