Australian Salaried Medical Officers' Federation (New South Wales) (on the behalf of Professor Morris) and Health Administration Corporation and others [2004] NSWIRComm 319 (29 October 2004)

Last Updated: 17 November 2004

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Australian Salaried Medical Officers' Federation (New South Wales) (on the behalf of Professor Morris) and Health Administration Corporation and others [2004] NSWIRComm 319 revised - 11/11/2004

FILE NUMBER(S): 4039

HEARING DATE(S): 01/10/2004

DECISION DATE: 29/10/2004

PARTIES:

APPLICANT (Respondent to Notice of Motion)

Australian Salaried Medical Officers' Federation (New South Wales) (on behalf of Professor Morris)

RESPONDENTS (Applicants to Notice of Motion)

First Respondent - Health Administration Corporation

Second Respondent - New South Wales Department of Health

Third Respondent - Central Sydney Area Health Service

JUDGMENT OF: Sams DP

LEGAL REPRESENTATIVES

APPLICANT (Respondent to Notice of Motion)

Mr B Docking of counsel

LAWYERS

Turner Freeman Solicitors

RESPONDENTS (Applicants to Notice of Motion)

Mr R Goot, AM, of senior counsel

with Mr B Gotting of counsel

LAWYERS

Minter Ellison Lawyers

CASES CITED: Baldestowe v Brown (1990) 19 NSWLR 459

Brambles Constructions Pty Ltd v Helmers (1996) 114 CLR 213

Cansino v South Western Sydney Area Health Service (1999) 130 IR 1

Construction, Forestry, Mining and Energy Union (New South Wales Branch) on behalf of Scott Anthony Elwell and Cobar Mining Services Pty Ltd & Anor [2004] NSWIRComm 32

Dana Tasovac v New South Wales Police Service [1999] NSWIRComm 436

Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority (NSW) (Inspector Ch'ng) (1999) 90 IR 432

Gillies and Ors v Health Administration Corporation and Anor [2003] NSWIRComm 243

Health Administration Corporation and others v Crocker and others [2004] NSWIRComm 163

Hill v Director General of the Department of Education (1998) 85 IR 201

I & J Foods Pty Limited v Bergzam Pty Ltd (1997) 14 NSWCCR 486

Lapcevic v Collier [2002] NSWCA 300

Leonard v Smith (1992) 27 NSWLR 5

Police Association of New South Wales v New South Wales Police [2004] NSWIRComm 256

South Eastern Sydney Area Health Service v Gadiry and Anor [2002] NSWCA 161

State of New South Wales v Banas [2004] NSWIRComm 255

State Rail Authority of New South Wales v The Honourable Justice Bauer and Others (1994) 55 IR 263

LEGISLATION CITED: Industrial Relations Act 1996

Workers' Compensation Act 1987

Health Services Act 1997

Workplace Injury Management and Workers' Compensation Act 1998

JUDGMENT:

- 1 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: SAMS DP

29 October 2004

Matter No IRC03/4039

Australian Salaried Medical Officers' Federation (New South Wales) (on behalf of Professor Morris) and Health Administration Corporation and others

Application by Australian Salaried Medical Officers' Federation (New South Wales) on behalf of its member Professor John George Morris for reinstatement of an injured employee pursuant to section 93 of the Industrial Relations Act 1996

DECISION ON NOTICE OF MOTION

[2004] NSWIRComm 319

1 As I apprehend it, this notice of motion asks the Commission to consider, for the first time, the definition of an 'injured employee' in s91(1) of Pt 7 ch 2 of the Industrial Relations Act 1996 ('the Act'). As such, this is a matter of some significance and importance. The notice of motion arises from an application filed by the Australian Salaried Medical Officers' Federation ('the Federation') on behalf of its member, Professor John George Morris. Shortly put, the relief sought by Professor Morris is reinstatement to a position as a staff specialist in nuclear medicine in the NSW Public Health system.

2 The terms of the notice of motion filed on 17 August 2004 were as follows:

1. An order that an extension of time be granted to the Respondents to file this Notice of Motion.

2. An order that the proceedings against the First Second and Third Respondents be struck out.

3. In the alternative to the order sought in 2 above, a declaration that the Industrial Relations Commission of New South Wales has no jurisdiction to reinstate Professor Morris to employment in a hospital outside the Central Sydney Area Health Service, as sought in paragraphs 46 and 47 of the Application and an order dismissing the Application in so far as it relates to any hospital outside the Central Sydney Area Health Service.

4. Such further or other orders the Commission sees fit.

3 At this juncture it is to be observed that the respondent to the notice of motion does not seek relief against the New South Wales Department of Health (the second respondent in the substantive proceedings). Secondly, in paragraph 3 of the notice of motion, the applicant does not seek a declaration, but rather, an order of the Commission. To the extent it is necessary, I amend the notice of motion accordingly. Thirdly, there was no suggestion that the Commission was without power to make the orders sought in the notice of motion. I shall proceed on that basis.

4 At the hearing of the notice of motion on 1 October 2004, Mr R Goot SC appeared with Mr A Gotting of counsel for the applicants on the motion (respondents in the substantive proceedings) and Mr B Docking of counsel appeared for the respondent on the motion (the applicant in the substantive proceedings). Mr M Lennon intervened on behalf of the Labor Council of New South Wales, pursuant to s167(3) of the Act.

5 Both parties provided helpful written and oral submissions and an Agreed Statement of Facts which I reproduce below:

1. On 1 April 1966, Professor Morris commenced his employment with Royal Prince Alfred Hospital, which later came under the administration of Central Sydney Area Health Service ('CSAHS').

2. At all material times, Professor Morris was an employee of CSAHS.

3. On 16 February 1993, Professor Morris was struck by a motor vehicle whilst crossing Missenden Road, Camperdown, in the course of his employment with CSAHS, causing him to sustain an injury ('Injury').

4. Professor Morris received workers' compensation payments in respect of the Injury.

5. Professor Morris brought proceedings in the Supreme Court of New South Wales, No. 20190 of 1994 ('Proceedings') against the motorist who caused the Injury. Annexure 'A' is a copy of the Statement of Claim filed on behalf of Professor Morris in the Proceedings on 29 March 1994. The Terms of Settlement and payment thereunder were disclosed by compulsion of law under summons and there is no suggestion that Professor Morris has breached the Terms of Settlement in disclosing that information.

6. At some stage after their commencement, the Proceedings were transferred to the District Court and in late 1998, the Proceedings were settled in accordance with Terms of Settlement and Professor Morris was paid in accordance with the Terms of Settlement which are annexed and marked 'B'.

7. Professor Morris refunded an amount of $82,801.78 to GIO Australia, CSAHS' insurer, for workers' compensation payments he had received in respect of the Injury. Annexed and marked 'C' is a copy of a letter dated 28 August 1998, from Steve Masselos & Co to GIO Australia relating to the repayment of workers' compensation payments made to Professor Morris and a trust account cheque dated 28 August 1998, in the amount of $82,801.78.

8. In late 1998 section 151Z of the Workers' Compensation Act 1987 (NSW) was in the form of annexure 'D'.

9. Following a series of correspondence between the CSAHS, Professor Morris, his then solicitor Steve Masselos and Australian Salaried Medical Officers' Federation ('ASMOF'), CSAHS ultimately terminated Professor Morris' employment on 3 March 1999. A copy of the letter of termination is annexed hereto and marked 'E'.

10. On 2 March 2001, ASMOF, on behalf of Professor Morris, made an application for reinstatement to CSAHS under section 92 of the Industrial Relations Act 1996 (NSW). A copy of this application is annexed and marked 'F'.

11. Accompanying the application for reinstatement referred to at paragraph 10 above and annexed hereto was a medical report from Dr Ross Jeremy dated 5 January 1999. A copy of this medical certificate is annexed hereto and marked 'G'.

12. A supplementary medical report from Dr Ross Jeremy dated 17 April 2001 was provided to the CSAHS under cover of letter dated 14 May 2001. A copy of the supplementary medical report and cover letter are annexed hereto and marked 'H'.

13. Annexure F (together with the attached medical report which is annexure G and covering letter and supplementary medical report which is annexure H) relevantly comprise the only application for reinstatement made in 2001 by, or on behalf of, Professor Morris.

14. Until its repeal effective 1 July 1998, section 26 of the Area Health Services Act 1986 (NSW) was in the form of annexure 'I'.

15. Section 115 of the Health Services Act 1997 (NSW) ('HSA') is currently in the form of annexure 'J'.

16. The HAC does not employ staff at hospitals and, apart from the operation of section 115 of the HSA, is not deemed to be the employer of staff at hospitals.

17. In relation to paragraphs 46 and 47 of Professor Morris's application, filed in the Industrial Relations Commission of New South Wales on 22 July 2003:

(a) Northern Sydney Area Health Service employs the staff at Royal North Shore Hospital;

(b) South Western Sydney Area Health Service employs the staff at Liverpool Hospital and Bankstown Hospital;

(c) Western Sydney Area Health Service employs the staff at Westmead Hospital;

(d) CSAHS employs the staff at Concord Repatriation General Hospital;

(e) South Eastern Sydney Area Health Service employs the staff at Prince of Wales Hospital and St George Hospital; and

(f) St Vincent's Hospital Sydney Limited employs the staff at St Vincent's Hospital.

6 I have not reproduced the annexures referred to in the Agreed Statement of Facts. However, I shall refer to matters contained in the annexures which are relevant for the purposes of this decision.

SUBMISSIONS

For the applicants

7 Mr Goot submitted that Professor Morris was not an 'injured employee' for the purposes of Pt 7 ch 2 of the Act at the time of his dismissal and so cannot make an application under that Part.

8 It was put that the injury to Professor Morris was caused by a person other than his employer (the driver of the motor vehicle) in circumstances that created a liability of that person to pay damages (see s151Z(5) of the Workers' Compensation Act). As a result of recovering such damages, Professor Morris was not entitled to any compensation under the Workers' Compensation Act.

9 Mr Goot argued that Pt 7 ch 2 of the Act establishes a scheme of rights for an 'injured employee'. For the following reasons it is plain that each of those rights is conditional upon a 'dismissal' occurring:

(a) the heading to s92 of the Act is 'Application to employer for reinstatement of dismissed injured employee';

(b) the entitlement to apply to the employer for reinstatement under s92 of the Act is conditional on the injured employee being 'dismissed';

(c) the entitlement to apply to the Commission for a 'reinstatement' order under s93 of the Act is, by implication, dependant upon a 'dismissal' - reinstatement can only occur if 'dismissal' has first occurred;

(d) the Commission may make a 'reinstatement' order under s94 of the Act is, dependant, by implication, upon a 'dismissal';

(e) the presumption of the reason for 'dismissal' under s95 of the Act is conditional on the injured employee being dismissed;

(f) the Commission may make, under s97(1) of the Act, an order that the period of employment of the injured employee is not broken 'by the dismissal';

(g) an employer is guilty of an offence under s98 of the Act if he, she or it employs, within two years after 'dismissing an injured employee', a person 'to replace the dismissed employee' and fails to inform the replacement person of certain matters; and

(h) an employer is guilty of an offence under s99 of the Act if he, she or it dismissed an employee within six months of the employee being not fit for employment as a result of the injury.

10 Mr Goot submitted that although s91 of the Act does not expressly state the time when the employee is to be entitled to receive compensation under the workers' compensation legislation, it is clear from the scheme of Pt 7 ch 2 of the Act that such time is the time of dismissal.

11 At the time of his dismissal on 3 March 1999, Professor Morris was not entitled to receive compensation under the Workers' Compensation Act (and thus, by virtue of section 2A of the Workers' Compensation Act, the Workplace Injury Management and Workers' Compensation Act 1998) by operation of s151Z of the Workers' Compensation Act. Accordingly, Professor Morris was not entitled to commence these proceedings.

12 In oral submissions, Mr Goot explained that if someone receives common law damages in the circumstances postulated in s151Z(1) then a number of things follow. Firstly, that person is required to give back any compensation paid. Secondly, that person cannot receive any further compensation and thirdly, and as a consequence that person cannot be an injured employee for the purpose of Pt 7 ch 2 because that person is not entitled to receive compensation. Accordingly, there can be no jurisdiction. Mr Goot said that Professor Morris could have made a s84 application at the time of his dismissal, but chose not to do so.

For the respondent

13 Unsurprisingly, Mr Docking, argued that Professor Morris is an 'injured employee' for the purposes of Pt 7 ch 2 of the Act. His primary submission was that there is no temporal element or connotation in s91(1) of the Act. Alternatively, the word 'is' in the expression 'the employee is entitled to receive compensation' refers back to the time when the injury occurred.

14 Mr Docking further submitted that an injured worker application under the Act is not governed by s151Z(1)(b) of the Workers' Compensation Act. The application before the Commission has nothing to do with the adjustment of financial rights between the worker, the employer and the stranger (i.e. the driver of the motor vehicle). Professor Morris was not seeking 'any further compensation' payable under the Workers' Compensation Act.

15 Mr Docking put that it was irrelevant for the purposes of this application that Professor Morris received $1.5 million as settlement of his damages claim in 1998. In the substantive proceedings, as foreshadowed in the Application for Reinstatement of Injured Worker, it is anticipated that his unfitness for work in the field of nuclear medicine for over six years will be shown to have meant that Professor Morris had the ability, as at 1994, to earn at least $200,000 per annum in full time nuclear medicine practice.

16 Mr Docking developed his submission that there is no need to import into s91(1) of the Act any temporal element by referring to Brambles Constructions Pty Ltd v Helmers (1996) 114 CLR 213 and Leonard v Smith (1992) 27 NSWLR 5.

17 Mr Docking put, in the alternative, that the word 'is' in the expression "the employee is entitled to receive compensation" refers back to the time when the injury occurred; see Lapcevic v Collier [2002] NSWCA 300.

18 Mr Docking referred to an analysis of the provisions of Pt 7 ch 2 of the Act in Cansino v South Western Sydney Area Health Service (1999) 130 IR 1. He further submitted that the language of the subsection and its context indicated that there is no temporal element or connotation.

19 Nextly, Mr Docking put that there was a need to avoid a construction, the consequences of which are manifestly inconvenient, absurd, irrational or capricious or which would result in serious injustice. See South Eastern Sydney Area Health Service v Gading and Anor [2002] NSWCA 161, State Rail Authority of New South Wales v The Honourable Justice Bauer and Others (1994) 55 IR 263; Dana Tasovac v New South Wales Police Service [1999] NSWIRComm 436; Construction, Forestry, Mining and Energy Union on behalf of Elwell and Cobar Mining Services Pty Ltd & Anor [2004] NSWIRComm 32 and Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority (NSW) (Inspector Ch'ng) (1999) 90 IR 432. Mr Docking provided three examples of the consequences of such a result.

20 Mr Docking referred to the beneficial intent of the injured worker's provisions of the Act. See Hill v Director General of the Department of Education (1998) 85 IR 201. In dealing with s151Z of the Workers Compensation Act, Mr Docking said that an injured worker application is not governed by s151Z(1)(b) of the Workers Compensation Act. See I & J Foods Pty Ltd v Bergzam (1997) NSWCCR 486 and State of New South Wales v Banas [2004] NSWIRComm 255.

Whether the HAC is the employer

21 Mr Goot submitted that the HAC was not an 'employer' for the purposes of Pt 7 ch 2 of the Act and, as a result, the Commission does not possess power to make an order against the HAC that it 'reinstate' Professor Morris - either at all or, in the alternative, to a hospital outside the area of responsibility of the CSAHS.

22 Mr Goot argued that s115(3) of the Health Services Act 1997 deems the HAC to be the employer of employees in the New South Wales Health Service for limited purposes.

23 In its current form, s115(3)(c) of the Health Services Act provides that the HAC:

'...is, for the purposes of any proceedings before a competent tribunal having the power to deal with industrial matters, taken to be the employer of the employees in the NSW Health Service'.

24 It was said, however, that the deeming arrangement effected by s115(3)(c) of the Health Services Act does not apply to applications under s93 of the Act. Section 115(3) relates to 'industrial matter'. For the purposes of s115(3) 'industrial matter' has the same meaning as that phrase has under the Act (see s115(1) of the Health Services Act). The power of the Commission under s94 of the Act is not dependant on the existence of an 'industrial matter'.

25 Section 115(8) of the Health Services Act also provides:

Nothing in this section authorises:

(a) the Health Administration Corporation to act as an employer, or

(b) any function to be exercised by or in relation to the Health Administration Corporation

otherwise than for the purposes of and in accordance with this section.

26 Mr Goot said that the combined effect of ss115(3)(c) and 115(8) of the Health Services Act is that the HAC is only taken to be the employer for the purposes of the conduct of proceedings and not the outcome of the proceedings. Section 115 of the Health Services Act does not have the effect of creating any additional substantive liabilities on the HAC in respect of employment issues.

27 Mr Goot said that in any event, Professor Morris has never applied to the HAC for it to reinstate him, as required by s92 of the Act. As a result, Professor Morris cannot apply to the Commission for a reinstatement order under s93 of the Act.

28 In the alternative, the application seeks reinstatement of Professor Morris to certain hospitals - Royal North Shore Hospital, Liverpool Hospital, Bankstown Hospital, Westmead Hospital, Prince of Wales Hospital, St George Hospital and St Vincent's Hospital - that are outside the area of responsibility of the CSAHS.

29 Section 115(3) of the Health Services Act, however, does not permit a broader order to be made against the HAC than could be made against Professor Morris' actual employer (CSAHS). This means s115(3) does not permit an order to be made that Professor Morris be employed at a hospital outside the areas of responsibility of the CSAHS.

30 In oral submissions, Mr Goot said that reliance on reference to 'industrial matter' is misplaced, as the application does not arise through the functions of the Commission seeking to resolve an industrial dispute. The Commission's functions arise under Pt 7 ch 2 of the Act.

For the respondent

31 Mr Docking argued that the HAC is a deemed employer pursuant to both the Act and the Health Services Act. The present application is clearly an 'industrial matter' in that it affects or relates to the privileges, rights, duties or obligations of employers or employees in an industry. More specifically it relates to the employment of persons in any industry and the termination of employment and/or refusal to employ a person in any particular industry.

32 It was further submitted that this construction is in conformity with the language and purpose of s115(2)(c) of the Health Services Act. The conclusions in Baldestowe v Brown (1990) 19 NSWLR 459 were distinguishable to the present case.

33 Mr Docking said that the respondents contend that "the combined effect of sections 115(3)(c) and 115(8) of the HS Act is that HAC is only taken to be the employer for the purposes of the conduct of proceedings and not the outcome of the proceedings." This construction would lead to the absurd result that the HAC would be the deemed employer throughout the conduct of proceedings, which proceedings would be ultimately frustrated by virtue of the fact that the deemed employer would cease to exist for the purposes of having an order follow from the conduct of the proceedings.

34 He further put that the HAC has been the respondent to proceedings outside strict industrial matters, such as under s106 of the Act. In Gillies and Ors v Health Administration Corporation and Anor [2003] NSWIRComm 243 per Schmidt J, from which HAC's appeal in Health Administration Corporation and others v Crocker and others [2004] NSWIRComm 163 per Wright J, President, Marks and Haylen JJ was unsuccessful.

Intervention of the Labor Council of New South Wales.

35 Mr M Lennon was granted leave, pursuant to s167(3) of the Act to intervene in the proceedings on behalf of the Labor Council of New South Wales. Mr Lennon generally supported the submissions of Mr Docking and said the Labor Council believed that this matter had wider ramifications for the trade union movement and its members. It is a matter which has been taken up with the Minister for Industrial Relations.

In reply

36 Mr Goot submitted that the scheme established by Pt 7 ch 2 of the Act does impart a temporal element between dismissal and the injured employee.

37 Mr Goot said the majority of the decisions relied upon by Mr Docking have no relevance as they deal with different questions flowing from the wording of a different statutory provision.

38 The decision in Cansino v South Western Sydney Area Health Service did not consider the meaning of an injured worker and did not attempt to, or need to resolve the temporal question.

39 Mr Goot said that reliance on the general principles of statutory construction was misplaced. The terms of Pt 7 ch 2 of the Act are plain and admit only one construction. Moreover, the fact that an entitlement to workers' compensation may vary from time to time does not detract from the proper construction of Pt 7 ch 2 of the Act.

40 Mr Goot said that despite the beneficial purpose of Pt 7 ch 2 of the Act, the section is qualified by the emphasis in the scheme on a dismissal.

41 Contrary to the Federation's submissions, Mr Goot put that the present proceedings are critically impacted upon by the adjustments of financial rights effected by s151Z(1) of the workers' compensation legislation. Section 91(1) expressly refers to the entitlement under the workers' compensation legislation. As a consequence, Professor Morris was unable to satisfy the requirements of s91 at the time of his dismissal.

42 In oral submissions, Mr Goot said that there can be no debate about the meaning of s 151Z(1) in the context of Pt 7 ch 2 of the Act. It follows that the decisions referred to by Mr Docking dealing with the workers' compensation legislation are entirely irrelevant. They do not raise issues which the Commission is dealing with here.

43 Mr Goot said that there is no temporal connection between the time of injury and the entitlement to pursue a reinstatement claim. The temporal connection is properly that there must be an entitlement to compensation at the time of dismissal.

Whether the HAC is the employer

44 Mr Goot reiterated that the Commission was not dealing with an 'industrial matter.' Consequently, the decision in Police Association of New South Wales v New South Wales Police [2004] NSWIRComm 256 is not relevant as Boland J was there dealing with an industrial dispute.

45 Mr Goot said that the HAC was not a 'deemed employer.' In any event, there could be no 'absurd result' as the CSAHS was a party to the proceedings and would be bound by any order of the Commission. The applicant is clearly not without a remedy against the actual employer.

46 The existence of power in other proceedings which was not challenged, does not mean that power exists in this case. In any event, the respective Area Health Services were parties to each of the relevant proceedings in the cases cited by Mr Docking.

47 Mr Goot rejected Mr Docking's proposition that the deeming provision in s115 of the Health Services Act is a legal fiction. It is a deeming provision for a limited and specific purpose which does not apply in these circumstances. In any event, no application was made to the HAC by Professor Morris for reinstatement and consequently the condition precedent for pursuing reinstatement against the HAC was not met.

CONSIDERATION

48 As I said at the outset, this matter is one of some significance and importance. It has attracted the intervention of the Labor Council of New South Wales which argued that the determination of the matter will have wider ramifications than the direct outcome of this case. As such I have given the parties' submissions careful consideration, bearing also in mind that the substantive application is due to commence shortly.

49 I do not intend to traverse in any way the merits of Professor Morris's substantive application. Essentially, the central issue to be determined here is one of statutory construction. It is a fundamental principle of statutory construction that a construction should be adopted which would promote the purpose of the statute in preference to one which would defeat that purpose, provided that the construction reflects the language of the statute by applying its ordinary and grammatical meaning. In this regard, I refer to the judgment of the majority Wright J, President and Walton J, Vice President in Drake Personnel Ltd v WorkCover (1999) 90 IR 432 at 444-446:

The courts have historically developed a number of differing principles to be applied when dealing with legislation which is expressed in uncertain terms or uncertain in its operation. The general approach to statutory construction adopted in recent cases may be illustrated by the judgment of Kirby P (as he then was) in State of New South Wales v Macquarie Bank Ltd (1992) 30 NSWLR 307. His Honour observed (at 319):

1. The primary task of a court, in its relationship with parliament, is to interpret parliament's will as expressed in the language which parliament has adopted. Nowadays, there is an increasing facility to look beyond the language of legislation to derive the imputed legislative will. But, in the end, courts must be faithful to that will as expressed in the legislative language. That is the way by which parliament speaks to the community and to the courts: see Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518;

2. Because legislation is expressed in language and language (especially the English language) is inescapably ambiguous, there will sometimes be a requirement that the court exercise a choice in deriving the will of parliament. Where that will is clear and the court has no choice, it must give effect to the clearly expressed legislative intention. But where there appears to be an ambiguity, the court should prefer the construction which appears to achieve the legislative purpose rather than that which appears to defeat or frustrate that purpose or undermine its achievement. This is not a new rule of statutory construction. But it is one which has been accorded greater emphasis in recent decisions of the courts in Australia, England and elsewhere in the common law world. The authorities and justification for this approach are to be found in McHugh JA's well-known opinion in Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423 ff; ...

The judgment of McHugh JA, as he then was, in Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423 included this passage:

A purposive and not a literal approach is the method of statutory construction which now prevails: cf Fothergill v Monarch Airlines Ltd [1981] AC 251 at 272-273, 275, 280, 291. In most cases the grammatical meaning of a provision will give effect to the purpose of the legislation. A search for the grammatical meaning still constitutes the starting point. But if the grammatical meaning of a provision does not give effect to the purpose of the legislation, the grammatical meaning cannot prevail. It must give way to the construction which will promote the purpose or object of the Act. The Acts Interpretation Act 1901 (Cth), s15AA, and the Interpretation Act 1987 (NSW),s 33, both require this approach to statutory construction. ...

But first and last the function of the court remains one of construction and not legislation. As Lord Diplock has pointed out "the task on which a court of justice is engaged remains one of construction; even where this involves reading into the Act words which are not expressly included in it": Jones v Wrotham Park Estates Ltd [1980] AC 74 at 105.

We consider that the approach stated provides that which should be adopted in this appeal. That is, that the primary task of the court is to ascertain the intention of parliament by examining the language of the legislation itself. If the terms of the legislation are clear, so is the duty of the court. If, however, the legislation is ambiguous or uncertain the court must decide between contending interpretations. In doing so, the court should prefer the construction which best accords with the evident purpose of parliament in enacting the legislation. Relevant considerations include the need to avoid a construction the consequences of which are manifestly inconvenient, absurd, irrational or capricious or which would result in serious injustice: see, for example, Clarke v Bailey (1993) 30 NSWLR 556 at 566.

For example, in their judgment, in Cooper Brookes (Wollongong) Pty. Limited v. Commissioner of Taxation (Cth) (1981) 147 CLR 297, Mason J (as he then was) and Wilson J observed (at 321):

Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended.

Gibbs CJ, in the same case (at 304-305), observed that the object in interpreting a statute was "to see what is the intention expressed by the words used", and held:

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 ([1913] A.C. 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.

See also Richens v Tresilian (1993) 50 IR 155 at 162-163; Kellogg (Australia) Pty Ltd v National Union of Workers, New South Wales Branch (unreported, Hungerford J, IRC98/3567, 25 September 1998). We also, with respect, adopt this approach as appropriate for our consideration of the construction issues raised in the appeal.

Relevant legislative provisions

50 In my opinion, the following statutory provisions are relevant. Section 91(1) of the Act defines an injured employee as follows:

(1) For the purposes of this Part, an "injured employee" is an employee who receives an injury for which the employee is entitled to receive compensation under the Workplace Injury Management and Workers' Compensation Act 1988, the Workers' Compensation Act 1987 or the Workers' Compensation (Dust Diseases) Act 1942.

51 The relevant provisions under the Workers' Compensation Act are found at s151Z:

(1) If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker’s employer to pay damages in respect of the injury, the following provisions have effect:

(a) the worker may take proceedings both against that person to recover damages and against any person liable to pay compensation under this Act for payment of that compensation, but is not entitled to retain both damages and compensation,

(b) if the worker recovers firstly compensation and secondly those damages, the worker is liable to repay out of those damages the amount of compensation which a person has paid in respect of the worker’s injury under this Act, and the worker is not entitled to any further compensation...

............

(5) For the avoidance of doubt, this section applies and is taken always to have applied to the recovery of compensation or damages, whether or not the compensation or damages were paid under an award or judgment. For example, compensation or damages may be paid under an agreement.

52 It is true of course that Pt 7 ch 2 of the Act is remedial in its intent and should be construed beneficially; see Construction, Forestry, Mining and Energy Union (New South Wales Branch) on behalf of Scott Anthony Elwell and Cobar Mining Services Pty Ltd and Anor and Banning v Great Lakes Council [2002] NSWIRComm 47. However, when construing a beneficial provision in a statute it is not open, in my opinion,

a. to give to the words used an unlimited or unfettered meaning,

b. to interpret the words beyond the scope of the legislature's clear intention, or

c. to interpret the words in such a manner as to strain the language beyond a meaning the words are not capable of bearing.

53 It could not be disputed that the scheme of Pt 7 ch 2 of the Act is that any entitlement to apply for reinstatement, must be conditional on an 'injured employee' being dismissed. Put another way, an order for reinstatement could not be made if the 'injured employee' had not first been dismissed. It follows that a claimant under Pt 7 ch 2 must be both an 'injured employee' and a dismissed employee. There can be no doubt that Professor Morris was a dismissed employee. He was dismissed on 3 March, 1999. This is the temporal connection. It is not, as Mr Docking contended, a connection between the entitlement to pursue reinstatement and the time of injury. The issue here is whether Professor Morris was an 'injured employee' as defined by the statute. It is that question to which I now turn.

54 In answering this question, it seems to me that two issues necessarily arise. Firstly, what effect does the word 'is' have in the expression "an injury for which the employee is entitled to receive compensation ...?" Secondly, was the employee entitled to receive compensation under the Workplace Injury Management and Workers' Compensation Act 1998 at the relevant time.

55 In my opinion, the use of the word 'is' in s91(1) is unambiguous. Support for this view comes by particular reference to its grammatical usage. The word is the third person singular of the present tense of the word 'be.' When given its plain, ordinary English meaning in the present tense, the word "is" can only result in a construction that an 'injured employee' must be one who is entitled to receive compensation under the workers' compensation legislation at the time of dismissal.

56 Applying that approach, it must follow that if the entitlement to receive compensation does not exist, or no longer exists at the time the employee is dismissed, then the dismissed employee cannot be an 'injured employee' within the meaning of s91(1) of the Act. That must be so whether or not the entitlement has been extinguished by consent of the parties or order of the Court or by any other arrangement. This proposition would seem to be abundantly plain by the proper reading of s151Z(5) of the workers' compensation legislation.

57 While such a construction might be seen to give the definition a narrow interpretation, I do not understand how it could be logically otherwise. Moreover, it seems to me that if the legislature had intended to give the definition a wider interpretation, it could have easily used the expressions 'was entitled' or 'may be entitled' or have stated the appropriate connection between the entitlement to reinstatement and the time of the injury.

58 During the course of argument, Mr Docking cited various authorities in support of his construction of s91 of the Act. However, to my mind these cases are distinguished in one important respect; none of them consider any particular legislative provision dealing with the reinstatement of an injured worker. I concur with Mr Goot that the cases cited do not deal with the issue here to be determined.

59 The facts in this case are relevantly:

1 On 16 February 1993, Professor Morris was struck by a motor vehicle during the course of his employment and was injured. He filed a workers' compensation claim and began to receive workers' compensation payments.

2. In March 1994, Professor Morris commenced proceedings against the driver of the motor vehicle that had struck him.

3. In August 1998 Professor Morris settled the proceedings arising from his injury and repaid the workers' compensation payments he had received.

4. By so doing, Professor Morris no longer had any entitlement to compensation under the workers' compensation legislation.

5. Professor Morris was dismissed on 3 March 1999 after his entitlement to compensation had been extinguished.

60 Viewed in the context of this factual matrix, it seems incontrovertible that Professor Morris could not have been an 'injured employee' for the purposes of Pt 7 ch 2 of the Act. He was not entitled to, nor was he receiving workers' compensation at the relevant time, being the date of his dismissal. It is axiomatic that Professor Morris is unable to bring a claim for reinstatement under Pt 7 ch 2 of the Act. That being so, paragraphs 1 and 2 of the notice of motion must be granted and the substantive application dismissed.

61 Having made these findings, it is not strictly necessary for me to determine the orders sought in para 3 of the notice of motion. This is so because the order was sought in the alternative to para 2 of the notice. I note further that the determination of the motion in favour of the applicants was described as a 'knock out' point.

62 Nevertheless, had I not found in favour of the applicants' primary argument, the issue of jurisdiction to reinstate Professor Morris to a hospital outside the Central Sydney Area Health Service would only arise if Professor Morris had been successful in his substantive application. In my view, the question of reinstatement and to what hospital, under what terms, would have been more appropriately considered in the substantive proceedings having regard for all the evidence then before the Commission. In any event, these matters are now purely academic.

63 Finally, I would make this observation. In light of the enormous amount of time, resources and costs already expended by both parties in preparation for the substantive proceedings, it is obviously a great pity that this notice of motion was not brought forward at an earlier stage in the long history of this matter. This is not to suggest, or imply, any criticism of either party, but rather state what I regard as plainly self evident.

ORDERS

1) The Commission orders that proceedings in matter IRC4039/03 against the first, second and third respondents be struck out.

2) As a consequence of Order 1, Matter IRC4039/03 is dismissed and concluded.

3) The dates set for hearing commencing on 8 November 2004 are vacated.

Peter J Sams, AM

Deputy President

LAST UPDATED: 17/11/2004