Campbell v Commissioner for Railways (NSW) [1971] HCA 74; (1971) 126 CLR 36 (17 December 1971)

HIGH COURT OF AUSTRALIA

CAMPBELL v. COMMISSIONER FOR RAILWAYS (N.S.W.) [1971] HCA 74; (1971) 126 CLR 36

Workers Compensation (N.S.W.) - Railways (N.S.W.)

High Court of Australia
Barwick C.J.(1), McTiernan(2), Menzies(3), Windeyer(4) and Gibbs(5) JJ.

CATCHWORDS

Workers' Compensation (N.S.W.) - Partial incapacity - Deemed total incapacity - Duty of employer to provide suitable employment to partially incapacitated employee - Railway employee - Employee past retiring age and subsequently retired - Whether regulation fixing retiring age provides defence to claim for total incapacity benefits - Government Railways Act, 1912 (N.S.W.), ss. 70, 78 - Government Railways Act Regulations, 1892, reg. 78 - Workers' Compensation Act, 1926 (N.S.W.), s. 11 (2).

Railways (N.S.W.) - Retiring age of employees - Employee retained after retiring age - Power of Commissioner to retain if of opinion retention of benefit to service - Whether unlawful for Commissioner to retain employee if no longer of opinion that retention of benefit to service - Government Railways Act, 1912 (N.S.W.), ss. 70, 78 - Government Railways Act Regulations, 1892, reg. 78.

HEARING

Sydney, 1971, October 26; December 17. 17:12:1971
APPEAL from the Supreme Court of New South Wales.

DECISION

December 17.
The following written judgments were delivered : -
BARWICK C.J. The appellant was an officer in the service of the Railway s. 70 of the Government Railways Act, 1912(N.S.W.)(the Act). His service as such an officer was regulated by amongst other provisions reg. 78 made under the Act. That regulation which was in force at all material times is in the following terms :

"All employees in every branch of the Railway Service,
whether the same be officers or servants, shall retire from the
Railway Service at the age of 60 years. Provided, however,
that the Railway Commissioners may at their discretion, and
with the consent of the parties, require any of such officers or
servants to continue in the said service after the age of 60
years, if it shall appear to the Commissioners that the retention
of such officers or servants would be advantageous to the
Service." (at p38)

2. The appellant attained the age of sixty years on 8th April 1965 but he continued as an officer in the service of the Commissioner, the Commissioner presumably having exercised the discretion vested in him by the said regulation. The appellant suffered injuries during 1955 and on 14th June 1965 suffered a further injury in the course of his employment. Partial loss of capacity resulted. However he continued in the service of the Commissioner, suitable "employment" being found for him. However on 21st June 1969 he ceased to be employed as an officer in the Commissioner's service being "retired" therefrom by the Commissioner presumably in pursuance of the Commissioner's power of removal given by s. 78 of the Act. He thereupon made an application to the Workers' Compensation Commission of New South Wales (the Commission) seeking an award declaring that he was entitled to be paid compensation on the basis of total incapacity. His claim in this respect was based upon s. 11 (2) of the Workers' Compensation Act, 1926 (N.S.W.), as amended (the Compensation Act). That section provides as follows :

"11 (2) An employer shall provide suitable employment
for his injured worker during the worker's partial incapacity
for work.
Upon any failure by such employer to provide suitable
employment as aforesaid the worker's incapacity for work
shall be deemed to be total, and he shall be compensated
accordingly." (at p38)

3. The Commissioner in defence to the appellant's claim submitted amongst other things that it would have been unlawful for him to have employed or to continue to employ the appellant from and after 21st June 1969 because the Commissioner had then formed the view that the retention of the appellant's services would not be advantageous to the railway service. The Commission found that the Commissioner had failed to provide the appellant with suitable employment and made an award accordingly. On appeal the Supreme Court (1971) 1 NSWLR 130 set aside the award holding, largely upon the basis of prior decisions of that Court, that the employment of the appellant by the Commissioner on or after 21st June 1969 would have been in breach of the said regulation and that that legal inability of the Commissioner to employ the appellant precluded the finding that in not employing the appellant the Commissioner had failed to provide him with employment within the meaning of s. 11 (2) of the Compensation Act. The appellant now by its special leave appeals to this Court seeking the restoration of the Commission's award. (at p39)

4. The argument of the appeal has raised two questions of importance : in the first place the true construction of reg. 78 ; and in the second place the more general question whether an employer who does not provide employment for his partially incapacitated worker because of a legal inability to do so can be held to have failed to provide employment as required by s. 11 (2) of the Compensation Act. In Furneaux v. Sydney County Council (1956) 73 WN (NSW) 667 ; the Supreme Court held that s. 11 (2) of the Compensation Act was limited in its operation to cases in which the employer in whose service the worker had suffered the partially incapacitating injury might lawfully employ the worker. Thus the terms of an award which required the retirement of the worker from the employer's employ at the age of sixty-five was held to be a bar to the operation of s. 11 (2) in the case of a partially incapacitated worker who was over that age when seeking suitable employment. (at p39)

5. In Shoebridge v. Commissioner for Railways (1961) 78 WN (NSW) 643 the view was expressed that the said reg. 78 would render it unlawful for the Commissioner to re-employ an over-age person whose continued service beyond the age of sixty years had been determined by the Commissioner. The whole Court was not of that view though it was prepared to follow its decision in Furneaux v. Sydney County Council (2). (at p39)

6. It appears to have been thought in the Supreme Court in the present case that reg. 78 on its true construction imposes upon the Commissioner a prohibition against employing persons who have attained the age of sixty years unless, and only for so long as, the Commissioner holds the opinion that the retention of the officer in his service would be advantageous to that service ; or as it was put alternatively that the regulation only gives to the Commissioner lawful authority to continue the employment of an officer who has attained the age of sixty years for so long as the Commissioner continues to hold that opinion. To use the language of the Supreme Court in Furneaux v. Sydney County Council (1956) 73 WN (NSW) 667 ; 1 LGRA 168 the regulation in the circumstances constituted "a legal bar to the employer employing the worker". Consequently, in the Supreme Court's view s. 11 (2) had "no application in this case", that is to say, that the Commissioner is not bound to provide employment for an over-age officer where he does not consider that the employment of such officer or his retention in the railway service would be advantageous to that service. (at p40)

7. However in my opinion this construction of the regulation is erroneous. Officers are retired on attaining the specified age unless the Commissioner exercises the discretion vested in him to allow an officer to remain in service. The Commissioner may exercise this discretion expressly or impliedly by conduct. Of necessity it will be exercised at the latest on the day the officer reaches the specified age. One would expect it to be exercised in anticipation of that day. But when that day is passed and the officer is retained in the service there is then, in my opinion, no qualification of the Commissioner's power to retain him in his service other than the general direction contained in s. 70. The discretion conferred on the Commissioner by the regulation is then spent. The power thereafter to continue to employ an over-age officer is not contingent upon the continuance of the Commissioner's opinion which justified the exercise of the discretion at the time the retiring age was reached. Nor is there any time limit placed on the officer's service. But of course the Commissioner may exercise his right of removal of an "over-age" officer at any time as in the case of any other officer. When he does so, the officer is not "retired" within the meaning of the regulation but dismissed or removed under s. 78. (at p40)

8. Consequently, in my opinion, it would not have been unlawful for the Commissioner to have continued the appellant in his service in some suitable occupation. For that reason alone the Supreme Court in my opinion was in error in setting aside the award of the Commission. (at p40)

9. Having formed this opinion there is no need for me to resolve the second question which this appeal raised. I may say however that I am far from convinced that in relation to the provisions of s. 11 (2) of the Compensation Act an inability on the part of the employer stemming from legal considerations statutory or otherwise is of any more significance than financial or other practical inability of the employer to offer the worker suitable employment. My inclination is to prefer the view that s. 11 (2) of the Compensation Act is not qualified by the existence of a regulation or an award as to retirement as the two cases to which I have referred might suggest. Its purpose is to protect the incapacitated worker if in fact suitable employment is not provided for him. The subsection does not expose the employer to a criminal penalty. He commits no offence by not providing the employment. If he does not do so the worker is to have compensation on the basis of total incapacity. Further and in any case it seems to me there is much room for the view that the expression in s. 11 (2) "provide employment" is large enough to enable the employer, if he cannot for any reason himself offer suitable employment, to procure the offer of such employment by another person. It seems to me that it may well be that the worker could not insist upon the suitable employment being in the service of the employer. However this aspect of the matter was not canvassed in argument and I express no opinion upon it. (at p41)

10. In my opinion, the decision of the Supreme Court should be reversed because reg. 78 in the circumstances did not preclude the Commissioner from providing suitable employment for the appellant. The Commission's award should be reinstated. (at p41)

McTIERNAN J. The appellant was retired from the railway service on 21st June 1969. He had been notified by letter of the respondent Commissioner's decision to retire him. The material part of the letter, which is dated 22nd May 1969, reads thus : ". . . In view of the report received in your case, the Chief Civil Engineer has advised that it is now proposed to proceed with your retirement. (at p41)

2. You are to cease duty at 4.15 p.m. on 20th June 1969, and your retirement will take effect on 21st June 1969 . . ." (at p41)

3. Presumably, the appellant was retired pursuant to s. 78 of the Government Railways Act, 1912 (N.S.W.) (as amended) which provides that : "The Commissioners may remove any officer." There seems to me to be no power conferred on the Commissioner by by-law 78 of the Railway By-laws to remove an officer who, like the appellant, had been continued in the service beyond the retiring age of sixty years. That by-law deals with the Commissioner's power to continue an officer in the railway service after reaching that age. (at p42)

4. At the time of his retirement the appellant had a "partial incapacity for work" within the meaning of s. 11 (2) of the Workers' Compensation Act, (N.S.W.)(as amended). Section 11 (2) reads as follows :

"(2) An employer shall provide suitable employment for
his injured worker during the worker's partial incapacity for
work.
Upon any failure by such employer to provide suitable
employment as aforesaid the worker's incapacity for work shall
be deemed to be total, and he shall be compensated
accordingly." (at p42)

In my view it is necessary for the purposes of this case to read s. 11 (2) with s. 70 (1) of the Government Railways Act. Section 70 (1) provides that :

" (1) The Commissioners shall appoint or employ such
officers to assist in the execution of this Act as they think
necessary, and every officer so appointed shall hold office
during pleasure only."

The word "officer" in this section is defined by s. 3 of the Act in this manner :

" 'Officer' means any officer, clerk, servant, or other person
employed by the Commissioners to assist in the execution of
this Act." (at p42)

The power of the Commissioner to appoint or employ an officer is not extended by s. 11 (2). It seems clear from the letter sent by the Department to the appellant that the Commissioner did not think it necessary to retain him in the service. There is no evidence that since the date of that letter the Commissioner has thought it necessary to reappoint the appellant. Section 11 (2) apart, s. 70 (1) operates as a statutory impediment to the Commissioner providing the appellant with suitable employment during his partial incapacity for work or at all. Where there is a statutory obstacle hindering an employer from complying with s. 11 (2) and the employer does not act in accordance with the first paragraph of the subsection, I consider that at least in that case there would not be a failure within the meaning of s. 11 (2) and the employer would therefore not be liable to have an award made against him under the second paragraph. In my opinion the Commissioner is in this position. (at p42)

5. I would therefore dismiss the appeal. (at p42)

MENZIES J. The appellant was an employee in the railways service. On 21st June 1969 his service was terminated by the Commissioner. He was informed as follows : "You are to cease duty at 4.15 p.m. on 20th June 1969 and your retirement will take effect on 21st June 1969." In so informing him, it may be that the Commissioner thought that he was acting under by-law 78 to which reference will be made hereafter. If so, he was wrong ; plainly he was acting under s. 78 of the Government Railways Act and was, in the exercise of his discretion, removing the officer. (at p43)

2. At the time of the termination of his service the appellant was partially incapacitated for work by reason of injuries suffered in the course of his service. (at p43)

3. In October 1969 he made a claim under s. 11 (2) of the Workers' Compensation Act for compensation on the footing of deemed total incapacity for work. The sub-section is as follows :

" (2) An employer shall provide suitable employment for
his injured worker during the worker's partial incapacity for
work.
Upon any failure by such employer to provide suitable
employment as aforesaid the worker's incapacity for work
shall be deemed to be total, and he shall be compensated
accordingly." (at p43)

4. This claim the Commissioner resisted. It was not disputed that the Commissioner had not provided the appellant with employment after 21st June. The Commissioner's stand was that, by virtue of by-law 78, he could not lawfully provide the appellant with employment. By-law 78 is as follows :

"All employees in every branch of the Railway Service,
whether the same be officers or servants, shall retire from the
Railway Service at the age of 60 years. Provided, however,
that the Railway Commissioners may at their discretion,
and with the consent of the parties, require any of such officers
or servants to continue in the said service after the age of 60
years, if it shall appear to the Commissioners that the retention
of such officers or servants would be advantageous to the
Service." (at p43)

5. By virtue of this by-law the appellant would have retired on 8th April 1965, when he reached the age of sixty years, had it not been that, by virtue of the proviso, the Commissioner required him to continue in the service. The contentions of the Commissioner were two ; first, that the by-law prevented the continued lawful employment, or the re-employment, of the appellant after 21st June 1969, for at that date it no longer appeared to the Commissioner that his retention in the service "would be advantageous to the Service" ; secondly, that s. 11 (2) of the Workers' Compensation Act has no application because there could be no failure on the part of the Commissioner to provide suitable employment when it would have been unlawful for him to provide any employment. (at p44)

6. The Court of Appeal, by a majority, accepted these contentions (1971) 1 NSWLR 130 (at p44)

7. The first question is, therefore, whether it would have been unlawful for the Commissioner to have employed the appellant after 21st June 1969. In considering this I assume that, by that date, it no longer appeared to the Commissioner that the appellant's retention in the service would be advantageous to the service. (at p44)

8. The Government Railways Act provides inter alia for a railway service. By s. 70 the Commissioner is required to appoint such officers to assist in the execution of the Act as he thinks necessary. Officers so appointed hold office at pleasure only. The Commissioner may remove any officer (s.78). There are various provisions for the protection of officers and for the discipline of the service. The service is one governed by the Act and by regulations made, or deemed to have been made, under the authority of the Act. By-law 78 was made under the provisions of the Railways Act 1888 and is deemed to have been made under the authority of the Act now in force. See s. 2 (4). It is not, however, a regulation deemed to have been made under s. 102 of the Act now in force. What s. 2 (4) does is to give the by-law the authority of law, whether or not it could have been made under s. 102. (at p44)

9. This short survey of the Act shows that the removal of an officer is a matter for the discretion of the Commissioner. The Commissioner has no power "to retire" officers. The retirement of officers is dealt with by the by-law and it confers no power in that respect upon the Commissioner ; the power it confers upon the Commissioner is, with consent, to retain officers, so freeing them from the obligation to retire at the age of sixty. Clearly enough the Commissioner must exercise the discretion conferred upon him by the by-law before, or at the point when, a particular officer reaches the age of sixty years ; otherwise retirement occurs. Once the Commissioner exercises the discretion conferred upon him, and requires an officer to continue in the service after the age of sixty years, that officer has no retiring age. Furthermore, the Commissioner's discretion must be exercised, at the latest, when the officer is "at the age of 60 years". If it be not exercised, the officer must retire ; if it be exercised, there is no obligation arising by virtue of the by-law for the Commissioner to maintain a continuous review of the service of the officer to ensure that his retention remains "advantageous to the Service". As I read the by-law the words "such officers or servants" refer back to the words "employees . . . at the age of 60 years". The decision to retain an officer exhausts the by-law and thereafter the Commissioner must rely upon s. 78 of the Act to remove the retained officer when he sees fit. Of course the officer could voluntarily retire. (at p45)

10. Accordingly, despite, but with respect to, the contrary opinion expressed by Collins J. in Shoebridge v. Commissioner for Railways (1961) 78 WN (NSW) 643 , and by the majority of the Court of Appeal in this case, I have found nothing in by-law 78 that would make it unlawful for the Commissioner to have continued to employ the appellant after 21st June 1969. (at p45)

11. This conclusion disposes of this case, for, upon my understanding of the Act and the by-law, it would not have been unlawful for the Commissioner to provide the appellant with suitable employment after 21st June 1969. Accordingly, the Commissioner had no answer to a claim under s. 11 (2) of the Workers' Compensation Act for compensation as for total incapacity. (at p45)

12. Whether the Commissioner would have had an answer to such claim, had it been unlawful to employ the appellant after 21st June 1969, is a question upon which I make no observations beyond this ; that I will find it an interesting problem if, and when, I have to decide it. (at p45)

13. Accordingly, I would allow the appeal. (at p45)

WINDEYER J. Section 11 (2) of the Workers' Compensation Act, 1926-1967 (N.S.W.) is as follows :

"An employer shall provide suitable employment for his
injured worker during the worker's partial incapacity for
work."

This section, as it stood before the amendment made in 1967, was considered by the Workers' Compensation Commission, the Supreme Court of New South Wales and this Court on several occasions. As I read it, in the light of what was said in those cases so far as applicable to it in its present form, the statement that an employer shall provide suitable employment for a partially incapacitated worker does not impose an absolute obligation. An employer is not required willy-nilly to provide work which the injured worker is capable of performing. But if he does not do so, and there is no impediment imposed by law to his doing so, the worker is entitled to compensation on the basis of a total incapacity for work. The decision in Furneaux v. Sydney County Council (1956) 73 WN (NSW) 667 ; 1 LGRA 168 was that a worker could not claim that his employer had failed to provide him with suitable employment after he had reached an age prescribed by law beyond which his continued employment would be unlawful. To have continued him in employment would have been contrary to an industrial award binding upon him and his employer. As Owen J. put it (1956) 73 WN (NSW), at p 668 ; 1 LGRA, at p 170 :

"Had the respondent (the employer) "retained the
appellant" (the worker) " in its service after that time it would
have violated the law and rendered itself liable to a penalty.
In my opinion, s. 11 (2) contemplates a state of affairs in which
there is no legal bar to the re-employment by the employer of
the incapacitated worker and the employer being free in law
to employ the worker has failed to do so." (at p46)

Herron J. reached the same conclusion ; but he was influenced by regarding s. 11 (2) as directed to the rehabilitation of injured workers. I do not see that as its primary purpose. It seems to me that, as the Chief Justice pointed out in the course of the argument in this case, the system of workers' compensation is directed not to restoration of a capacity to work but rather to compensation for the loss of the capacity. Brereton J. (1956) 73 WN (NSW), at p 670 ; 1 LGRA, at p 172 , in agreement with Owen J., said of the award which there governed the employment in which the worker was engaged when he was injured that :

"Such an award . . . not only establishes the terms of the
contract of employment ; it lays down inflexible rules and
penalties . . . one of those rules is that an employee shall
retire upon reaching the age of sixty-five. This is a matter
entirely outside the control of the parties." (at p46)

2. I have set out those statements from Furneaux's Case (1956) 73 WN (NSW) 667 ; 1 LGRA 168 , as they shew how different that case was from that now before us. Here there was no "legal bar" to the continued employment of a worker after the age of sixty if it should appear to the Commissioner that to retain him would be advantageous to the service. That is the antithesis of an "inflexible rule". The relevant by-law, number 78, is as follows :

"All employees in every branch of the Railway Service
whether the same be officers or servants shall retire from the
Railway Service at the age of 60 years. Provided however
that the Railway Commissioners may at their discretion and
with the consent of the parties require any such officers or
servants to continue in the said service after the age of 60
years if it shall appear to the Commissioners that the retention
of such officers or servants would be advantageous to the
Service." (at p47)

3. It seems to me a mistake to treat the question in this case as whether this by-law, which was made under statutory authority, overrides s. 11 (2) of the Act. I see no inconsistency between them. What has happened is that the Commissioner, treating the continuance of the services of the appellant as advantageous, had retained him in the service after he reached the age of sixty. Then he was partially incapacitated by an injury in the course of his employment. It was urged for the respondent that the proviso to the by-law should be read as meaning that after the age of sixty a man might be required to remain in the service while, and so long as, it appeared to the Commissioner that his retention was advantageous to the service. This it was said meant that the appellant's employment was subject to a day-to-day decision by the Commissioner that its continuance was advantageous to the service. His position was thus said to be in a peculiar sense temporary or contingent, because he was a superannuated man who had not been retired. But that view is, I think, a misapprehension. By virtue of the proviso to the by-law the employment of the appellant was not terminated when he became sixty. He was retained in the service. Thereafter the effect of the by-law was, so far as he was concerned, spent. He simply continued to be employed like all other railway officers, holding his office at pleasure and being removable by the Commissioner : Government Railways Act, 1912-1957 (N.S.W.),ss. 70,72,78. It is a mistake to regard him as holding his office under the by-law. One assumes, of course, that if at any time it had been thought by the Commissioner that his employment was not advantageous, he would have been discharged, as anyone of any age whose services were no longer required would be. But he was while he remained in the service a person who, by s. 72 (1) of the Act, was deemed to be employed in a permanent office. (at p47)

4. That being the position of the appellant when he was injured, and the Commissioner being by definition in s. 6 of the Workers' Compensation Act an employer bound by its provisions, the appellant is entitled to the benefit of s. 11 (2). As I have said, Furneaux's Case (1956) 73 WN (NSW) 667 ; 1 LGRA 168 is in marked contrast with this case. I do not question that decision as the matter there arose : but I am unable to accept as correct decisions in other cases which purport to follow it, but which to my mind unwarrantably enlarge its operation. The decision of this Court in Australian Gas Light Co. v. Steele (1963) 36 ALJR 336 makes that plain I think. There is no suggestion in this case that at the relevant time the appellant was not able and willing to work at suitable employment if it had been made available to him : cf. Electric Power Transmission Pty. Ltd. v. D'Urso [1970] HCA 40; (1970) 124 CLR 338 . I may add here that, in agreement with the Chief Justice, I think that to provide employment for a man can mean more than to employ him. An employer would, I think, satisfy his obligation under s. 11 (2) if he arranged that someone else, a subsidiary company perhaps, should offer the injured worker suitable employment. But that does not mean that I think that s. 11 (2) can be read as requiring an employer to find employment for an injured worker if he is himself precluded by law from providing it. I leave that question aside. It does not arise in this case. (at p48)

5. I fully appreciate that in its literal application s. 11 (2) could in some circumstances have far-reaching consequences. It may be that long after an employer has, by death, or in the case of a company by dissolution, ceased to exist, an award on the basis of total incapacity continues : but that is because the liability falls upon an insurer, insurance being the bedrock of the whole system of workers' compensation. More startling is the suggestion that an award resulting from an injury causing partial incapacity can, by virtue of s. 11 (2), be transformed into an award on the basis of total incapacity to endure when total incapacity occurs in fact as a result of senility or other cause unrelated to employment. But some anomalies can be overcome by the provisions of the Act for the review and variation of awards. In any event, such considerations cannot curtail the operation of s. 11 (2) according to its terms. (at p48)

6. I consider that this appeal should be allowed and the award of the Workers' Compensation Commission restored. (at p48)

GIBBS J. The appellant was for about sixteen years employed by the Commissioner for Railways of the State of New South Wales. He reached the age of sixty on 8th April 1965 but continued in the railway service after that date, presumably in consequence of an exercise by the Commissioner of the discretion allowed him by the provisions of by-law 78 of the Railway By-laws, to which I shall refer. He had received quite severe injuries to his neck in the course of his employment during 1955 and, as a result, degeneration occurred in the disc joints of his spine. His condition was aggravated by further injuries sustained after 8th April 1965. He was, for some time, employed on light duties, but ceased to be employed by the Commissioner on 21st June 1969. Since that date, according to the findings of the Workers' Compensation Commission, the appellant has been partially incapacitated and the Commissioner has failed to provide him with any employment. In accordance with these findings the Workers' Compensation Commission awarded the appellant compensation on the basis that his incapacity for work was total, considering that such an award was required by the provisions of s. 11 (2) of the Workers' Compensation Act, 1926 (N.S.W.) (as amended) which reads as follows :

"An employer shall provide suitable employment for his
injured worker during the worker's partial incapacity for
work.
Upon any failure of such employer to provide suitable
employment
as aforesaid the worker's incapacity for work shall be
deemed to be total, and he shall be compensated accordingly."

However an appeal from the decision of the Workers' Compensation Commission was allowed by the Court of Appeal, by a majority (1971) 1 NSWLR 130 . (at p49)

2. The submission on behalf of the Commissioner, which the majority of the Court of Appeal accepted, was that s. 11 (2) does not apply if it would be unlawful for the employer to employ the injured worker, and that by reason of the provisions of by-law 78 it would have been unlawful for the Commissioner to retain the appellant in employment after 21st June 1969. (at p49)

3. By-law 78 was made in 1892 under the Government Railways Act, 1888 (N.S.W.) and it was not disputed that it has, since the repeal of that Act, been continued in force by the operation first of s. 2 (3) of the Government Railways Act, 1901 (N.S.W.) and, subsequently, by s. 2 (4) of the Government Railways Act, 1912 (N.S.W.). The by-law reads :

"All employees in every branch of the Railway Service,
whether the same be officers or servants, shall retire from the
Railway Service at the age of 60 years. Provided, however,
that the Railway Commissioners may at their discretion, and
with the consent of the parties, require any of such officers
or servants to continue in the said service after the age of 60
years, if it shall appear to the Commissioners that the retention
of such officers or servants would be advantageous to the
service."

The majority of the Court of Appeal accepted as correct the opinion as to the effect of this by-law expressed by Collins J. in Shoebridge v. Commissioner for Railways (1961) 78 WN (NSW) 643, at p 653 :

"However, I am of opinion that the by-law fixed the retiring
age of an officer in the Department as being that point of
time when the retention in employment of the officer, who has
reached or passed his sixtieth birthday, was no longer
considered
by the Commissioner to be to the advantage of the
service."

In other words, they considered that it was not lawful for the Commissioner to continue the appellant's employment after he had attained the age of sixty years once it ceased to appear to the Commissioner that the retention of the appellant was advantageous to the service. With great respect I am unable to share this view of the effect of by-law 78. It is clear enough that when an employee in the railway service reaches the age of sixty he is retired by the force of the by-law itself, unless it appears to the Commissioner that his retention would be advantageous to the service and unless the Commissioner (to use the old-fashioned language of the by-law) requires him to continue in the service. However, I am of opinion that once the Commissioner has exercised his discretion to continue the employment of a particular servant, the by-law has no further application to the case of that servant. The effect of the by-law is that when a servant attains the age of sixty years he is retired unless the Commissioner exercises his discretion to continue him in the service, but once the servant has either retired or been continued in the service, the by-law has nothing more to say as to his position. The by-law does not provide that the Commissioner may continue to employ a servant after the age of sixty only so long as it appears to the Commissioner that his retention is advantageous to the service. In other words, the by-law does not oblige the Commissioner to keep the case of every servant who has attained the age of sixty under constant review and to discontinue his service if it shall not appear that his retention would be advantageous to the service. Stated broadly all that the by-law does is to fix a retiring age and to give the Commissioner a discretion to continue a servant in employment beyond that age. Thereafter the Commissioner has no legal duty to discontinue his service once it ceases to appear that his retention is advantageous, although the Commissioner may at any time remove such a servant under the power given by s. 78 of the Government Railways Act, 1912 (N.S.W.) (as amended) to remove any officer (which term includes a servant - s. 3). (at p50)

4. Since the continued employment of the appellant after 21st June 1969 would not have been unlawful, even if it had ceased to appear to the Commissioner that his retention was advantageous to the service, the suggested ground for denying the application of s. 11 (2) has not been established. It is therefore unnecessary to consider whether the decision in Furneaux v. Sydney County Council (1956) 73 WN (NSW) 667 ; 1 LGRA 168 , that the liability imposed by s. 11 (2) does not apply to a period during which there is a legal bar to the re-employment by the employer of the incapacitated worker, is correct. (at p51)

5. I would allow the appeal. (at p51)

ORDER

Appeal allowed with costs. Order of the Supreme Court set aside and in lieu thereof order that the appeal to that Court be dismissed with costs.