Re Commonwealth of Australia v Eugene Roger Christoffelsz [1988] FCA 11 (1 February 1988)

FEDERAL COURT OF AUSTRALIA

Re: THE COMMONWEALTH OF AUSTRALIA
And: EUGENE ROGER CHRISTOFFELSZ
No. ACT G56 of 1987
Administrative Law - Statutes - Workers' Compensation

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.(1)

CATCHWORDS

Administrative Law - Administrative Appeals Tribunal - Decision that employee totally incapacitated by aggravation of disease to which his employment by the Commonwealth a contributing factor - Employee not disentitled to compensation by reason of wilful and false representation made by employee in application for appointment as an officer of Australian Public Service and for admission to superannuation fund on ground that representation not made "for purposes connected with his employment or proposed employment by the Commonwealth" - Appeal to Federal Court of Australia - Error of law - Proper construction of statutory provision - Whether ambiguity in provision disclosed by reference to long title.

Statutes - Interpretation - Whether ambiguity disclosed by reference to long title of statute.

Workers' Compensation - Commonwealth employee - Employee totally incapacitated by aggravation of disease to which his employment a contributing factor - Wilful and false representation made by employee in application for appointment as officer of Australian Public Service and for admission to superannuation fund - Whether employee disentitled to compensation on ground that representation made "for purposes connected with his employment or proposed employment by the Commonwealth".

Administrative Appeals Tribunal Act 1975 (Cth), s.44(1)

Compensation (Commonwealth Government Employees) Act 1971 (Cth), s.29(3)

HEARING

CANBERRA
1:2:1988

Counsel for the applicant: Mr B.T. Sully, Q.C. and Mr T.M. Johnstone

Solicitor for the applicant: Australian Government Solicitor

Counsel for the respondent: Mr B.J. Salmon, Q.C. and Mr I.W. Nash

Solicitor for the respondent: Mr A.A. Hardiman, Legal Aid Office (A.C.T.)

ORDER

The appeal be allowed.

The decision of the Administrative Appeals Tribunal dated 29 June 1987 be set aside and there be substituted therefor a decision that the determination made by a delegate of the Commissioner for Employees' Compensation on 19 November 1985 be affirmed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

This application by way of appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") raises a short point as to the proper construction of sub-s.29(3) of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) ("the Act").

2. The text of s.29 of the Act should be set out in full but, before doing so, reference should be made to sub-s.27(1) and to certain definitions in sub-s.5(1). Sub-section 27(1) provides that, if personal injury arising out of or in the course of the employment of an employee by the Commonwealth is caused to the employee, the Commonwealth is, subject to the Act, liable to pay compensation in respect of that injury in accordance with the Act. "Injury", as defined in sub-s.5(1), means any physical or mental injury and includes the aggravation, acceleration or recurrence of any physical or mental injury but, subject to s.29, does not include a disease or the aggravation, acceleration or recurrence of a disease. "Disease" is defined in sub-s.5(1) to include any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development.

3. Section 29 provides:

"(1) Where -

(a) an employee contracts a disease or
suffers an aggravation, acceleration or
recurrence of a disease; and

(b) any employment of the employee by the
Commonwealth was a contributing factor
to the contraction of the disease or to
the aggravation, acceleration or
recurrence, as the case may be, whether
or not the disease was contracted or the
aggravation, acceleration or recurrence
was suffered in the course of that
employment,

the succeeding provisions of this section have
effect.

(2) If -

(a) the death of the employee;

(b) a loss to the employee of a kind
referred to in section 39 or 40;

(c) facial disfigurement to the employee;

(d) a loss to the employee of the sense of
taste or smell; or

(e) the total or partial incapacity for work
of the employee,

results from the disease, or from the
aggravation, acceleration or recurrence of the
disease, or the employee obtained medical
treatment in relation to the disease, or the
aggravation, acceleration or recurrence of the
disease, as the case may be, then, for the
purposes of this Act, unless the contrary
intention appears -

(f) the contraction of the disease, or the
aggravation, acceleration or recurrence,
as the case may be, shall be deemed to
be a personal injury to the employee
arising out of the employment of the
employee by the Commonwealth; and

(g) the date of the death, the date of the
loss, the date of the disfigurement, the
date of the commencement of the
incapacity or the date on which the
medical treatment was first obtained,
whichever is the earlier, shall be
deemed to be the date of the injury.

(3) Sub-section (2) does not apply in
relation to a disease, or an aggravation,
acceleration or recurrence of a disease, if the
employee has at any time, for purposes connected
with his employment or proposed employment by the
Commonwealth, made a wilful and false
representation that he did not suffer, or had not
previously suffered, from that disease."

4. Reference should also be made to ss.45 and 37 of the Act. Section 45 prescribes the amount of weekly compensation payable in respect of an injury to an employee which results in the employee being totally incapacitated for work. Section 37 provides for payments to be made in respect of the cost of medical treatment obtained in relation to the compensible injury.

5. The Tribunal had before it an application to review a determination made by a delegate of the Commissioner for Employees' Compensation on 19 November 1985 to the effect that the Commonwealth was not liable to pay compensation to Eugene Roger Christoffelsz ("the respondent") in accordance with the provisions of ss.45 and 37 of the Act "in respect of any period of incapacity or medical expense incurred by the employee from and including 27 February 1985". The circumstances in which that determination came to be made are referred to later in these reasons. Although the delegate appears to have accepted that the respondent was suffering from a condition which resulted in total incapacity for work, he was not satisfied that that condition was the result of personal injury arising out of or in the course of the respondent's employment or the contraction, aggravation, acceleration or recurrence of a disease to which his employment was a contributing factor. That determination was, on reconsideration, affirmed.

6. On 29 July 1987, the Tribunal made a decision in the following terms:

"1. The determination in this matter is set
aside. The matter is remitted for
reconsideration with the directions that:-

(a) the applicant's incapacity since he
retired from the service of the
Commonwealth results from the
aggravation of a disease to which his
employment was a contributing factor;

(b) he is totally incapacitated thereby;

(c) the false representations made by the
applicant when he applied to join the
superannuation fund do not attract
section 29(3) of the Compensation
(Commonwealth Government Employees) Act
1971 ('the Act');

(d) the applicant is accordingly entitled to
compensation for total incapacity and
for medical treatment.

2. Pursuant to sub-section 64(3) of the Act
the applicant is entitled to his costs in these
proceedings at three quarters of the Supreme
Court scale in the Australian Capital Territory
as agreed; to be taxed by the Registrar or Deputy
Registrar in the absence of agreement."

The references in the decision to "the applicant" are references to Mr Christoffelsz, the present respondent.

7. From that decision the Commonwealth has appealed to this Court pursuant to s.44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). Such an appeal may only be brought on a question of law. The question of law identified in the notice of appeal filed on behalf of the Commonwealth is whether the false representations made by the respondent attract sub-s.29(3) of the Act. The false representations referred to in the Tribunal's decision and in the notice of appeal need to be identified. For that purpose some reference must be made to the material facts.

8. The respondent was born in Ceylon on 6 June 1922 and had his home there until he emigrated to Australia, arriving in this country on 25 November 1971. During the Second World War he was mobilised into the Ceylonese Navy. In April 1942, he suffered an injury to his back while serving on a minesweeper during an air attack on Colombo harbour. He had pain in the small of the back which persisted for six months. His disability, however, did not prevent him performing his normal duties on board ship.

9. In 1945, the respondent was demobilised but after a period of some two years he was recalled to the navy. He remained in that service until shortly before coming to Australia in 1971. In 1969 he was travelling in a launch to board a frigate which was anchored at sea. The coxswain of the launch found it difficult to come alongside the gangway of the frigate. The respondent attempted to jump on to the gangway but lost his footing and again injured his back. He suffered pain from this injury during the next two to two and a half years.

10. Shortly after this incident, the respondent was examined by an orthopaedic specialist who prescribed daily exercises. As his condition did not improve, he was referred to another orthopaedic specialist who suggested surgery. He was referred to a neurosurgeon who advised against surgery and told the respondent that he should continue with the exercises and reduce his weight. The respondent said in evidence before the Tribunal that he still continued to do those exercises. X-rays taken of the respondent's lower back on 9 January 1971 showed marked degenerative changes in the lumbar spine.

11. Because of his disability the respondent, who had previously commanded a frigate, was transferred to a sedentary job ashore. According to the respondent, his case was referred to a naval medical board in Colombo but he resigned from the navy without waiting for its results.

12. After his arrival in Australia, the respondent sought employment in the Public Service of the Commonwealth, as the Australian Public Service was then known. Pursuant to ss.9 and 82 of the Public Service Act 1922 (Cth) as amended ("the Public Service Act") he was employed in a temporary capacity as a Clerical Assistant Grade 3 in the Department of the Senate with effect from 17 April 1972. He continued as a temporary employee until his appointment, on probation, as an officer of the Australian Public Service on 31 March 1977. That appointment, which was to a position of Clerical Assistant Grade 3 (Fourth Division) in the Department of the Senate, was subsequently confirmed upon the respondent satisfactorily completing his period of probation and satisfying the medical requirements for such appointment.

13. It may be noted, in passing, that the relevant documentary material that was before the Tribunal refers to an appointment as an officer of the Australian Public Service as being a "permanent appointment". In using that expression the comments of Bowen C.J. and Northrop J. in Fowell v. Ioannou (1982) 45 ALR 491 at pp 493-4 must be borne in mind.

14. It appears that, in 1975, the respondent had sought to become a contributor to the Superannuation Fund established under the Superannuation Act 1922 (Cth). As a temporary employee, he could become eligible to contribute to that fund, under the statutory provisions then in force, only if he had been employed in a temporary capacity for a continuous period of not less than three years and he obtained a certificate that such employment was likely to continue for a period of at least seven years. Alternatively, he could become eligible to contribute to the fund by being appointed as an officer of the Australian Public Service. The evidence does not disclose by which of these alternative means the respondent proposed to achieve his objective. It appears, however, that he was, on 30 April 1975, examined by a Commonwealth Medical Officer in connection with his application. According to the respondent's evidence, he was told that he had passed the medical examination but, for reasons which remain unexplained, the necessary action to enable him to become a contributor to the fund was not taken.

15. In 1977 the respondent applied for appointment as an officer of the Australian Public Service. On 7 April 1977 he was examined by a Commonwealth Medical Officer for the purpose of determining whether he was medically fit for appointment as such an officer under the Public Service Act and whether he met the general medical standard for admission to the Superannuation Fund established by the Superannuation Act 1976 (Cth) which had come into operation on 1 July 1976, replacing the Superannuation Act 1922 (Cth).

16. For the purpose of that medical examination the respondent was required to complete, and completed, certain parts of a form headed "Public Service Act and Superannuation Act" and described as "Medical Report Form - Permanent Appointment". The respondent was required, before attending for medical examination, to answer "Yes" or "No" to certain questions set out in Part B on pages 2 - 3 of the form relating to his personal medical history and, in the event of an affirmative answer being given to any question, to furnish full details in Part C on page 3. A number of the questions required the respondent to state whether he was then suffering, or had ever suffered, from any of certain specific disabilities. The question numbered 1(j) referred to "Disturbance of sensation or muscular activity". The question numbered 5(a) referred to "Lumbago, paralysis or disorder of the limbs or spine". To each of those questions the respondent answered "No". Question 12(a) asked whether the respondent had had "any operations, surgical treatment or accidents" to which the respondent answered "Yes" and gave the following details in Part C of the form - "1949 Tonsils removed". Question 12(b) asked whether the respondent had had "any complaints, illness or injury not mentioned above". He answered "No".

17. The respondent also signed two declarations. One was to the effect that the statements he had made as to his personal medical history were true and correct to the best of his knowledge. The other was in the following terms:

"I understand that any wilfully incorrect or
misleading statements or omissions in my
personal statement on pages 2 and 3 may render
me ineligible for appointment or, if appointed,
liable to dismissal."

18. As a result of the medical examination it was determined that the respondent's health and fitness justified his acceptance "for permanent appointment under the Public Service Act." It was also considered that he met the general medical standard for the purposes of the Superannuation Act 1976 (Cth). He was, as has already been mentioned, subsequently appointed as an officer of the Australian Public Service. Following that appointment, he became a contributor to the Superannuation Fund established by the Superannuation Act 1976 (Cth). He continued to contribute to that fund until his retirement on invalidity grounds.

19. An incident at work on 6 October 1982 caused the respondent to suffer pain in the lower back. He was absent from work from that date until 1 May 1984. On 20 January 1983 it was determined that the respondent had suffered an aggravation of a disease, namely sciatica, to which aggravation his employment was a contributing factor. He was, accordingly, paid compensation under the Act in respect of the resulting total incapacity for work. He returned to work on 1 May 1984 and he was employed, for a time, on light duties. His condition deteriorated and he was again examined by a Commonwealth Medical Officer on 6 February 1985. The Commonwealth Medical Officer reported that he was unfit for continued employment due to lumbo-sacral degenerative disease and should be retired from the Australian Public Service on the ground of invalidity. On 27 February 1985 he commenced sick leave pending retirement. He was retired with effect from 9 April 1985.

20. As has already been mentioned, the Tribunal, contrary to the opinion of the delegate who made the determination dated 19 November 1985, found that the respondent's incapacity since his retirement from the service of the Commonwealth resulted from the aggravation of a disease to which his employment was a contributing factor, that he was totally incapacitated and that, subject to the operation of sub-s.29(3) of the Act, he was entitled to compensation under the Act in respect of his incapacity and to payments in respect of medical treatment. Those findings were not challenged by the applicant.

21. The Tribunal also found that the respondent "knew when he joined the Australian Public Service in a temporary capacity and later when he was examined for superannuation and permanency that he had injured his back and in consequence had degenerative back disease" and that, in answering, preparatory to his medical examination on 7 April 1977, the questions to which reference has been made, "he wilfully withheld that information and in doing so deliberately gave false replies". It is clear from those findings that, in terms of sub-s.29(3) of the Act, the respondent, in answering the questions relating to his personal medical history, had made a wilful and false representation that he did not suffer, and had not previously suffered, from what the Tribunal described as degenerative back disease.

22. The question remained whether that representation was made "for purposes connected with his employment or proposed employment by the Commonwealth". This question the Tribunal answered in the negative, holding, in consequence, that sub-s.29(3) of the Act was inapplicable in the circumstances. It is necessary to examine the Tribunal's reasons for arriving at this conclusion.

23. The Tribunal said, no doubt correctly, that sub-s.29(3) is to be construed, not in isolation, but in the context of the Act as a whole. It then identified the long title as the only part of the Act throwing light on the meaning of sub-s.29(3). The long title is expressed in the following terms:

"An Act to make provision for Compensation in
respect of Employees of the Commonwealth and
certain other Persons by reason of Injury or
Disease, or Loss or Destruction of, or Damage
to, certain Property, occurring in Circumstances
connected with their Employment."

The Tribunal concluded that there was an ambiguity in the meaning of the relevant words in sub-s.29(3). It considered whether there was any extrinsic aid to construction which would assist in resolving the perceived ambiguity but found none. The Tribunal's reasons for decision then proceed:

"Thus it is proper to interpret sub-section
29(3) of the Act in accordance with its context
in an Act to provide compensation 'by reason of
injury or disease ....'. On that interpretation
sub-section 29(3) has no application to a false
statement made in circumstances unrelated to the
liability of the Commonwealth to pay
compensation. In my view the circumstances in
which the false statement was made were
circumstances related to admission to the
superannuation fund and to permanency, although
quite what permanency means was not made clear.
They were not circumstances related to the
liability of the Commonwealth to pay the
applicant (respondent) compensation under the
Act. I so find; thus section 29(3) of the Act
is not relevant."

24. In my respectful opinion, the Tribunal's approach to the question of construction of sub-s.29(3) of the Act which arose for its consideration cannot be accepted. The correct approach is made clear in the following passage from the judgment of Gibbs C.J. in Cooper Brookes (Wollongong) Pty Ltd v. Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at pp 304-5:

"It is an elementary and fundamental principle
that the object of the court, in interpreting a
statute, 'is to see what is the intention
expressed by the words used': River Wear
Commissioners v. Adamson (1877) 2 App Cas 743,
at p 763. It is only by considering the meaning
of the words used by the legislature that the
court can ascertain its intention. And it is
not unduly pedantic to begin with the assumption
that words mean what they say: cf. Cody v. J.H.
Nelson Pty Ltd. [1947] HCA 17; (1947) 74 CLR 629, at p 648.
Of course, no part of a statute can be
considered in isolation from its context - the
whole must be considered. If, when the section
in question is read as part of the whole
instrument, its meaning is clear and
unambiguous, generally speaking 'nothing remains
but to give effect to the unqualified words':
Metropolitan Gas Co. v. Federated Gas Employees'
Industrial Union [1925] HCA 5; (1925) 35 CLR 449, at p 455.
There are cases where the result of giving words
their ordinary meaning may be so irrational that
the court is forced to the conclusion that the
draftsman has made a mistake, and the canons of
construction are not so rigid as to prevent a
realistic solution in such a case: see per Lord
Reid in Connaught Fur Trimmings Ltd v. Cramas
Properties Ltd. (1965) 1 WLR 892, at p 899;
(1965) 2 All ER 382, at p 386. Examples of
that sort of case may be found in Maxwell on the
Interpretation of Statutes, 12th ed., (1969), at
p.228 et seq., and Craies on Statute Law, 7th
ed., (1971), at p.520 et seq. However, if the
language of a statutory provision is clear and
unambiguous, and is consistent and harmonious
with the other provisions of the enactment, and
can be intelligibly applied to the subject
matter with which it deals, it must be given its
ordinary and grammatical meaning, even if it
leads to a result that may seem inconvenient or
unjust. To say this is not to insist on too
literal an interpretation, or to deny that the
court should seek the real intention of the
legislature. The danger that lies in departing
from the ordinary meaning of unambiguous
provisions is that 'it may degrade into mere
judicial criticism of the propriety of the acts
of the Legislature', as Lord Moulton said in
Vacher & Sons Ltd v. London Society of
Compositors [1912] UKHL 3; (1913) AC 107, at p 130; it may
lead judges to put their own ideas of justice or
social policy in place of the words of the
statute. On the other hand, if two
constructions are open, the court will obviously
prefer that which will avoid what it considers
to be inconvenience or injustice. Since
language, read in its context, very often proves
to be ambiguous, this last mentioned rule is one
that not infrequently falls to be applied."

25. Circumstances in which the long title of an Act may aid in the construction of its provisions were adverted to by Latham C.J. in Birch v. Allen [1942] HCA 17; (1942) 65 CLR 621 at pp 625-6:

"It may be proper to look at the title for the
purpose of determining the scope of an Act; it
may be referred to, not to contradict any clear
and unambiguous language, but if there is any
uncertainty it may be referred to for the
purpose of resolving the uncertainty."

26. In my opinion, there is no warrant for reading the relevant language of sub-s.29(3) in the restricted sense adopted by the Tribunal. What the provision requires is that the wilful and false representation be made "for purposes connected with his (the employee's) employment or proposed employment by the Commonwealth". It is sufficient that the representation be made "at any time". The words of the provision are ordinary English words and, prima facie, are to be given their ordinary meaning. So read, the meaning of the provision is clear and unambiguous. To require that the representation be made in circumstances related to the liability of the Commonwealth to pay to the employee compensation under the Act is to do violence to the language of the provision in circumstances where there is nothing in the context to require such a departure from the intention of the legislature as disclosed by the ordinary meaning of the words used. To give effect to the unqualified words of the provision does not result in an irrational result calling for some limitation to be placed upon them. Nor does it result in any disharmony between sub-s.29(3) and any other provision of the statute.

27. I am equally unable to adopt the meaning of sub-s.29(3) for which counsel for the respondent contended. According to counsel's submission, the sub-section is to be read as meaning that a wilful and false representation of the kind referred to will disentitle an employee to compensation which would otherwise be payable by virtue of the provisions of s.29 only where the circumstances are such that, had the true facts been known, the employee would not have been engaged as a temporary employee or appointed as an officer of the Australian Public Service or, if had already been so engaged or appointed, his engagement or appointment would have been terminated. To adopt this submission would involve reading into sub-s.29(3) words substantially limiting the ordinary meaning of the words used. I can discern no warrant for doing so.

28. Counsel for the respondent endeavoured to suggest some circumstances in which to adopt the ordinary meaning of the words used could lead to an inconvenient or even unjust result. In a case where a wilful and false representation of the kind postulated by the provision has been made by an employee, the question will always arise whether the representation was made for a purpose connected with his employment or proposed employment by the Commonwealth. This is a question of fact and degree, the answer to which will depend upon the circumstances of the particular case. I am inclined to think that the difficulties to which counsel for the respondent adverted were no more than a reflection of the kind of question that may arise in applying the provision in a particular set of circumstances. So understood, the examples he gave do not really assist in determining whether some limitation is to be read into the general words of the sub-section. But, even if counsel were correct in submitting that to give the language its ordinary meaning may lead in particular cases to an inconvenient or even unjust result, that of itself provides no sufficient warrant for reading words of limitation into the provision.

29. Giving the words of the sub-section their ordinary meaning, there can be no doubt, on the uncontradicted material before the Tribunal, that the wilful and false representation of the respondent was made for purposes connected with his employment or proposed employment by the Commonwealth. It is unnecessary to consider whether, if the representation had been made solely for the purposes of becoming a contributor to the Superannuation Fund established by the Superannuation Act 1976 (Cth), that would have been sufficient to bring the respondent within the purview of the sub-section. Here, the representation was made in connection with a medical examination being conducted as part of the necessary process in dealing with the respondent's application for appointment as an officer of the Australian Public Service. The questions asked of the respondent concerning his personal medical history, the answers to which constitute the wilful and false representation, were clearly relevant to the issue whether he was to be regarded as fulfilling the medical requirements for appointment as an officer. I can see no basis upon which it can be denied that the respresentation was made for a purpose encompassed within the plain words of the provision.

30. For the above reasons, the appeal is allowed. The decision of the Tribunal dated 29 July 1987 is set aside and there is substituted therefor a decision that the determination under review be affirmed. The Court was informed that the Commonwealth had agreed to pay the respondent's costs of the appeal to this Court in any event. In the light of that agreement, I make no order as to the costs of the proceeding in this Court.