Re Commonwealth of Australia v FR Spaul (A Delegate of the Commissioner of Employees' Compensation) and Colin Irvine Bird [1987] FCA 309 (11 September 1987)

FEDERAL COURT OF AUSTRALIA

Re: THE COMMONWEALTH OF AUSTRALIA
And: F.R. SPAUL (A DELEGATE OF THE COMMISSIONER FOR EMPLOYEES' COMPENSATION)
and COLIN IRVINE BIRD
No. G97 of 1987
Administrative Law - Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Davies(1), Lockhart(1) and Neaves(1) JJ.

CATCHWORDS

Administrative Law - judicial Review - appeal from order of trial judge - review of determination of delegate of Commissioner made under Compensation (Commonwealth Government Employees) Act - operation of s.30 of the Act and of item 4 in First Schedule in Regulations - whether "the disease is a disease of a kind specified in the regulations as a disease that is related to employment of a kind so specified" - "of a kind" - whether disease itself must be caused by exposure to radiation.

Practice and Procedure - principles of interpretation in relation to beneficial legislation not applicable in absence of ambiguity.

Administrative Decisions (Judicial Review) Act 1977

Compensation (Commonwealth Government Employees) Act 1971 ss.29, 30.

Compensation (Commonwealth Government Employees) Regulations, reg. 12, item 4 in First Schedule.

HEARING

SYDNEY
11:9:1987

Counsel and solicitors for the Appellant: Mr G. Davies Q.C. with Mr J. Logan instructed by the Australian Government Solicitor

Counsel and solicitors for the Second Respondent: Mr R. Cooper Q.C. with Mr W. McMillan instructed by Hawthorn, Cuppaidge & Badgery

ORDER

The appeal be allowed.

The order of the trial judge be set aside and there be substituted therefor an order that the determination of the delegate of the Commissioner for Employees' Compensation made on 14 November 1986 be set aside and the matter remitted to the Commissioner for Employees' Compensation for reconsideration according to law.

There be no order as to costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

This is an appeal from a judgment of a single judge of this Court in proceedings brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) seeking the review of a determination of a delegate of the Commissioner for Employees' Compensation.

2. The delegate had considered a claim made by the second respondent, Mr C.I. Bird, for compensation for carcinoma of the tongue and its effects. The claim had relied upon the fact that Mr Bird, when a member of the Royal Australian Air Force, had for a period of seven days fitted and removed canisters from aircraft which had collected radioactive air and dust samples after the Hurricane nuclear test which took place on 3 October 1952. Mr Bird subsequently serviced the aircraft at a time when they were contaminated and took part in their cleansing.

3. Material before the delegate would have enabled the delegate to find that the minor exposure to ionising radiation which Mr Bird suffered in the course of these activities was not a probable, but could have been a possible, cause of or a contributing factor to Mr Bird's disease. The delegate did not expressly make that finding but that was the highest at which the factual case for Mr Bird could have been put.

4. We need not set out the well known provisions of s.29 of the Compensation (Commonwealth Government Employees) Act 1971 which, read with s. 27, enable an employee to claim compensation if the employment of the employee by the Commonwealth was a contributing factor to the contraction of the disease from which he suffers or to its aggravation, acceleration or recurrence. The decision in this case turns upon the provisions of s.30 of the Act which provide:-

"Without limiting by implication the operation of
section 29, where -

(a) an employee has suffered or is suffering from
a disease or the death of an employee results
from a disease;

(b) the disease is a disease of a kind specified
in the regulations as a disease that is
related to employment of a kind so specified;
and

(c) the employee was, at any time before symptoms
of the disease first became apparent, engaged
by the Commonwealth in employment of that
kind,

then, for the purposes of this Act, unless the
contrary is established, the employment in which
the employee was so engaged by the Commonwealth
shall be deemed to have been a contributing factor
to his contraction of the disease."

Pursuant to this provision, regulation 12 of the Compensation (Commonwealth Government Employees) Regulations provides:-

"For the purposes of section 30 of the Act, a
disease of a kind specified in the first column of
the First Schedule to these Regulations is related
to employment of a kind specified in the second
column of that Schedule opposite to the reference
to that disease in the first column."

The relevant item in the First Schedule is item 4 of a group of 25 items. We set out item 4 and certain other items:-

" FIRST SCHEDULE Regulation 12
DISEASES RELATED TO EMPLOYMENT

----------------------------------------------------------------
First Column Second Column

Disease Employment
----------------------------------------------------------------

2. Ankylostomiasis Employment in or about a
mine

4. Pathological condition Employment involving
caused by - exposure to or contact
(a) radium or another with radium, other radio-active
radioactive substance; substances or
or x-rays

(b) x-rays

5. Pneumoconiosis Employment involving
inhalation of matter
capable of causing
pneumoconiosis

11. Poisoning by carbon Employment involving

bisulphide exposure to or contact
with carbon bisulphide

24. Primary epitheliomatous Employment involving

cancer of the skin exposure to or contact
with tar, pitch, bitumen,
mineral oil, paraffin or a
compound, product, or
residue of any of those
substances"

5. The delegate considered that Mr Bird suffered a "Pathological condition caused by ... another radioactive substance" as specified in item 4 in that he suffered from a disease which could be caused by radiation. His express finding was:-

"It was concluded that the condition suffered by Mr
Bird was a condition of a kind caused by exposure
to radiation and to that extent section 30 was
satisfied."

The learned trial Judge took the same view. His Honour said:-

"The relevant question is 'Is the pathological
condition from which Mr Bird suffers a kind of
pathological condition that is caused by radium,
another radioactive substance, or x-rays?'"

The reason advanced by the trial Judge for this view was:-

"In my opinion, the answer to the present question
is to be found in the words of s.30(b), that the
disease be a disease 'of a kind' specified in the
regulations. The words 'of a kind have a purpose
to serve. The contention of the Commonwealth is
that it is necessary that the cancer be caused by
exposure to radiation and s.30 would, on that being
done, supply the required linking between the
exposure to radiation which caused the cancer and
the exposure to radiation in the course of Mr
Bird's employment with the Commonwealth. On that
argument, it seems to me that the disease suffered
by Mr Bird would be 'a disease specified in the
first column of the First Schedule', and the words
'of a kind' would be otiose."

The trial Judge thus accepted the contention of counsel for Mr Bird that item 4 "does not import a requirement that it be proved that the cancer from which Mr Bird suffers was caused by exposure to radiation in the sense of proving that exposure to radiation was a contributing factor to his contraction of that disease".

6. Notwithstanding the persuasive points made by the trial Judge in his reasons for decision we are unable to accept the construction which he and the delegate adopted. The word "kind" is appropriately used to denote a genus, class or description. When s.30 of the Act refers to the employee's disease, it uses the words "a disease" and "the disease". When it requires that that disease be a disease of a genus, class or description specified in the Regulations as a disease that is related to employment of a genus, class or description also specified therein, it uses the term "of a kind". Regulation 12 gives effect to this provision. The operation of s. 30 depends on the disease being a disease of a kind specified in the Regulations. It is impermissible to construe the words "of a kind" as negating cause.

7. In the First Schedule Ankylostomiasis and Pneumoconiosis are diseases specified by name. Primary epitheliomatous cancer of the skin is given its technical description rather than name. Most items are items of poisoning by a specified cause. Item 4 refers to a pathological condition having the cause which it specifies. Each item in the First Schedule thus describes a disease by name, technical description or cause. Item 4 is not differentiated in this respect from the other items in the first column of the First Schedule.

8. In our opinion, s.30 does not operate unless the facts show that the disease suffered by the employee is a disease of the genus, class or description specified in the first column of the First Schedule. That is to say, in respect of a named disease such as Ankylostomiasis, that it is such a disease; in respect of poisoning by carbon bisulphide, that it is such a disease; and in respect of item 4, that the disease is a pathological condition caused by radium or another radioactive substance or x-rays.

9. In our opinion, the approach taken by the delegate and by the learned trial judge imputes the words "of a kind" into item 4 in the first column of the First Schedule. They do not appear therein. Item 4 does not refer to a "Pathological condition of a kind caused by ... another radioactive substance". The genus, class or description specified is "Pathological condition caused by ... another radioactive substance".

10. If there were any doubt it would be removed by item 5 which, in the second column, uses the words "matter capable of causing pneumoconiosis". Had item 4 intended to encompass pathological conditions capable of being caused by radioactive substances, the item would have said so.

11. The trial Judge properly said that:-

"The Act is beneficial in purpose and is therefore
to be construed as amply as the provisions will
properly permit."

and submissions to the same effect were put on the hearing of the appeal by counsel for Mr Bird. However, there is no room for the application of any such principle of interpretation when the words of a statute have a plain meaning according to ordinary and natural usage. Item 4 has a plain meaning.

12. It is unnecessary to consider the other grounds raised in the appeal.

13. For these reasons, the appeal should be allowed and the order of the trial Judge should be set aside. There should be substituted therefor an order that the determination of the delegate made on 14 November 1986 be set aside and the matter remitted to the Commissioner for Employees' Compensation for reconsideration according to law. The appellant did not seek an order for its costs of the appeal and, in consequence, we make no order.