Court of Appeal (WA)|2015-03-20|Before: Buss JA

BAKER -v- HIS HONOUR JUDGE STONE OF THE DISTRICT COURT OF WESTERN AUSTRALIA [2015] WASCA 56 (20 March 2015)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : BAKER -v- HIS HONOUR JUDGE STONE OF THE DISTRICT COURT OF WESTERN AUSTRALIA [2015] WASCA 56

HIS HONOUR JUDGE STONE OF THE DISTRICT COURT OF WESTERN AUSTRALIA

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Citation : ROBERTSON -v- BAKER [2014] WADC 14

Statutory construction - Whether primary judge erred in construing Criminal Injuries Compensation Act 2003 (WA) - Deductions to be made from a 'compensation award' - Receipt of worker's compensation - Worker's compensation sum exceeded statutory maximum under the Criminal Injuries Compensation Act - Whether judge erred in finding that no compensation payable under Criminal Injuries Compensation Act

Amicus Curiae : Mr G T W Tannin SC & Ms M Georgiou

Amicus Curiae : State Solicitor for Western Australia

Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29

Baker v Assessor of Criminal Injuries Compensation (1998) 20 SR (WA) 377

Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378

City of Kwinana v Lamont [2014] WASCA 112

Curran v Champion [2012] WADC 9

Devos v James [No 2] [2013] WADC 36

Patman v Fletchers Fotographics Pty Ltd (1984) 6 IR 471

Reed v Reed [2002] WADC 11

S v Neumann (1995) 14 WAR 452

1 The appellant has applied for the issue of a writ of certiorari quashing an order made by a judge of the District Court allowing an 'appeal' from a decision of an Assessor under the Criminal Injuries Compensation Act 2003 (WA) (the Act). The Assessor had awarded the appellant the statutory maximum allowed by the Act, $75,000, after he was assaulted in the course of his employment as a senior transit officer.

2 The appellant had also been awarded workers' compensation totalling approximately $257,000 under the Workers' Compensation and Injury Management Act 1981 (WA) (Workers' Compensation Act).

3 The primary judge reversed the Assessor's decision on the basis that the workers' compensation payments were to be deducted from a compensation award under the Act, and that as those payments exceeded the statutory maximum for an award under the Act, the appellant had no entitlement to compensation under the Act. In so holding, the judge followed an earlier decision of the District Court in Devos v James [No 2] [2013] WADC 36 (Devos No 2).

4 The appellant alleges that the judge misconstrued the Act and as a result misconceived the nature of the function he was required to perform, thereby making his decision amenable to certiorari: Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29 [45] - [49].

5 The respondent has, appropriately, decided to abide by the decision of the court. The Chief Executive of the Department of the Attorney General of Western Australia, with prior leave, appears as amicus curiae.

6 The long title to the Act states that it is an Act to provide for the payment of compensation to victims of offences 'in some circumstances' and for related matters.

7 Section 12(1) of the Act enables a person who suffers injury as a result of the commission of a 'proved offence' to apply for 'compensation for the injury and any loss also suffered'.

8 Section 3 defines 'injury' as relevantly bodily harm, mental and nervous shock. The word 'loss' is defined in s 6 of the Act, in the case of a victim who is injured, to include certain medical expenses and 'loss of earnings suffered by the victim as a direct consequence of the injury suffered by the victim'.

Subject to sections 42(3) and (4) and 68, this Act must be construed as being in addition to, and not in derogation of, any other law.

10 Part 2 is headed 'Applying for compensation' and contains s 8 - s 17.

Any entitlement of a victim to compensation under this Act ceases on the death of the victim.

12 Part 3 contains s 18 - s 28 and is headed 'Dealing with compensation applications'.

(1) If an assessor dealing with a compensation application by or on behalf of a victim who suffered injury as a consequence of the commission of an offence is of the opinion that the victim -

(a) has reasonable grounds for taking proceedings independently of this Act to obtain compensation or damages for all or some of the claimed injury and any claimed loss; or

(b) may be entitled under a contract of insurance to payment for all or some of that injury or loss,

the assessor may require the victim to take proceedings to obtain the compensation, damages or payment and may defer the application pending the determination of those proceedings.

(2) If an assessor dealing with a compensation application by the personal representative of a victim who died as a consequence of the commission of an offence is of the opinion that the personal representative -

(a) has reasonable grounds for taking proceedings independently of this Act to obtain compensation or damages for all or some of any claimed loss; or

(b) may be entitled under a contract of insurance to payment for all or some of that loss,

the assessor may require the representative to take proceedings to obtain the compensation, damages or payment and may defer the application pending the determination of those proceedings.

14 Part 4 contains s 29 - s 45 and is headed 'Matters governing compensation awards'.

15 Section 3 defines 'compensation award' (unless a contrary intention appears) as follows:

Compensation award means an award of compensation made under Part 4.

(1) On a compensation application in respect of injury suffered by a victim as a consequence of the commission of an offence, an assessor may award such compensation that the assessor is satisfied is just for the injury and for any loss also suffered.

(2) A compensation award made under subsection (1) may include directions that all or a specified part of the compensation be held on trust for the victim by the person, and on any terms, specified in the award.

(3) On a compensation application made by the personal representative of a victim who dies as a consequence of the commission of an offence, an assessor may award such compensation that the assessor is satisfied is just for the loss suffered by the one or more close relatives of the deceased.

(4) A compensation award made under subsection (3) may -

(a) apportion the compensation between 2 or more close relatives;

(b) include directions that all or a specified part of the compensation be held on trust for a close relative by the person, and on any terms, specified in the award.

(5) An assessor may at any time for good reason amend or cancel a direction made under subsection (2) or (4).

(1) Subject to sections 32, 33 and 34, the maximum amount that may be awarded in aggregate under sections 30(1) and (3) in favour of one person for a single offence committed on a date in a period set out in the Table to this subsection is set out in the Table opposite that period.

Period

(all dates inclusive)

On or after the day on

which this Act comes into

operation

(2) Subject to sections 32, 33 and 34, the maximum amount that may be awarded in aggregate on a compensation application made by the personal representative of a victim who dies as a consequence of the commission of an offence committed in a period set out in the Table to subsection (1) is set out in that Table opposite the period.

18 Section 32, s 33 and s 34 deal with, respectively, the position with respect to multiple offenders, multiple related offences and multiple unrelated offences.

19 Sections 36 - 40 set out a range of circumstances in which an assessor must not make a compensation award in favour of an applicant.

registered organisation has the meaning given by the National Health Act 1953 of the Commonwealth.

(2) An assessor must deduct from a compensation award in relation to any loss suffered by a victim, or a close relative of a deceased victim, any amount that the victim or close relative would, but for this Act, also be entitled to receive under a contract of insurance with a registered organisation in respect of any of that loss.

(3) An assessor must deduct from a compensation award in relation to any injury or loss suffered by a victim, or a close relative of a deceased victim, any amount that the victim or close relative has received by way of compensation or damages, or under a contract of insurance, for the injury or loss.

(4) If an assessor is satisfied that a victim, or a close relative of a deceased victim, who has suffered injury or loss will receive an amount by way of compensation or damages, or under a contract of insurance, for the injury or loss, the assessor may deduct the amount from a compensation award in relation to that injury or loss.

(5) Despite subsections (3) and (4), in the case of an application by a personal representative of a deceased victim, the amounts described in the Fatal Accidents Act 1959 section 5(2)(b) and (c) must not be deducted. (original emphasis)

21 Part 5 contains s 46 - s 48 and is headed 'Paying compensation awarded'.

The Consolidated Account is charged with the payment of any compensation awarded under this Act and is appropriated accordingly.

23 Part 6 of the Act provides for the Director General to seek to recover the amount payable under the award from the offender.

24 Section 68, in pt 9 of the Act, provides:

(a) a compensation award is made in respect of any injury or loss suffered by a victim or a close relative of a deceased victim; and

(b) the victim or close relative also receives or recovers in respect of that injury or loss an amount under a contract of insurance or by way of damages or compensation, otherwise than under this Act; and

(c) that amount is not deducted under section 42(3) or (4),

(d) the amount awarded to the victim or close relative under the compensation award; or

(e) the amount referred to in paragraph (b),

is a debt due to the State by the victim or close relative or by any person who holds the amount referred to in paragraph (b) on behalf of the victim or close relative.

compensation award includes an award for payment of compensation made under the Criminal Injuries Compensation Act 1985.

25 The maximum amount payable under the Act is merely a jurisdictional limit, and is not reserved for the worst cases: S v Neumann (1995) 14 WAR 452, 463.

Appellant's grounds of appeal and submissions

26 The essential contentions made by the appellant in the grounds of appeal are contained in grounds 2 and 3, as follows:

The jurisdictional error is constituted by the judge's mistaken interpretation of part 4 of the [Act] and in particular s 31(1) and s 42(3) thereof ...
The erroneous interpretation was applying an incorrect order of operations to s 31(1) and s 42(3) by making deductions to the appellant's compensation pursuant to s 42(3) after imposing the jurisdictional amount required by s 31(1). Reversing the order of application of those provisions would have resulted in a compensation award of $75,000 to the appellant. (original emphasis)

27 In oral submissions, counsel for the appellant submitted, in effect, that the key to his argument was that the term 'compensation award' in s 42(3) does not have its defined meaning, and that, read in its context in s 42(3), it signifies an award 'notionally', or an 'assessment or award assessment', or a 'notional award' (ts 10 - 14, 17).

28 Although not entirely clear, the appellant appeared to submit, in effect, that the Act, on its proper construction, contemplates (relevantly for present purposes), the following steps:

(a) the assessor dealing with an application for compensation is to assess an amount under s 30, and without regard to s 31, which would provide a just amount of compensation to the applicant under the Act;

(b) the amount so determined is a 'notional' compensation award for the purposes of s 42(3), and is the sum pursuant to which any deduction under s 42(3) is then made;

(c) the deduction required under s 42(3) operates differentially upon different elements of the notional compensation award so that, for example, a worker's compensation payment which is effectively attributable to past economic loss would be deducted from that particular element of the notional compensation award, but other elements, such as the general damages component of the notional award, would remain unaffected; and

(d) after the notional compensation award is adjusted by the appropriate deduction under s 42(3), it is necessary to return to s 30 and s 31, to determine the (real) 'compensation award' under the Act. Thus, if the notional compensation award, as adjusted under s 42(3), is in an amount in excess of the maximum sum of $75,000, then the 'compensation award' payable to the applicant under the Act is limited to, and is, $75,000.

29 The appellant submits that this construction of the Act would avoid 'anomalous' results and is consistent with the Act operating as beneficial legislation.

30 The appellant submits that the judge thereby erred in that his Honour failed to apply the Act in the correct way and instead found, in effect, that (relevantly for present purposes):

(a) the assessor is to determine the 'compensation award' for the purposes of s 30 of the Act, including having regard to the maximum amount capable of being awarded under s 31;

(b) the amount of the 'compensation award' determined under s 30 read with s 31 can never exceed $75,000;

(c) pursuant to s 42(3) of the Act, 'any' amount received by way of compensation or damages or under a contract of insurance is to be deducted from the amount of the 'compensation award' determined under s 30 read with s 31; and

(d) accordingly, if the 'compensation award' is the maximum sum ($75,000), and an amount of compensation or damages or a payment under a contract of insurance which the applicant receives exceeds that maximum sum, then s 42(3) requires that the amount received be deducted from the compensation award of $75,000, leaving no amount of compensation payable under the Act.

31 The appellant submits that the judge's interpretation is not consistent with s 31(1) of the Act, which requires an assessor to 'aggregate' any awards for the injury and loss awarded under s 30(1) and s 30(3). It is submitted that there is nothing to aggregate if s 31(1) is applied to fully determined compensation awards.

32 The 'anomalous' results which, the appellant alleged, would flow from the judge's construction of the Act, included the following example provided by the appellant (written submissions, par 26):

[T]wo people suffer similar injuries when their car is struck by a stone dropped from an overpass by an offender:

Victim A: is privately insured and claims for treatment costs amounting to $25,000 on her private health insurer. In addition, she receives $50,000 income protection payments for the year off work following the injury. Her general damages were assessed at $50,000.

Victim B: is uninsured, and is treated as a public patient. She suffers no economic loss and her general damages claim is also assessed at $50,000.

33 In relation to this example, the appellant submitted (written submissions par 26):

If s 31(1) is applied prior to s 42, Victim A would receive nothing and Victim B $50,000. The reverse order of application of the sections would result in the same award being given to each victim which it [is] submitted is the reasonable outcome, given the assumption they suffered similar injuries.

34 Much of the appellant's submissions savoured of the proposition that the object or purpose of the Act was to ensure that victims of crime were, generally speaking, entitled to compensation out of the public purse. The appellant submitted that the Act operated on the basis that the State stood as an insurer of the perpetrator of the crime, up to a maximum amount of $75,000 (ts 7). Counsel also submitted in effect that the only purpose of s 42(3) was to exclude 'double dipping' and that providing, and to the extent, that the alternative source of compensation or insurance payment did not cover the same heads of damage as were covered by the notional compensation award, then the Act was intended to apply to compensate the victim up to the maximum sum.

35 Counsel for the appellant also relied on certain extrinsic material to support his construction of the Act. In the second reading speech (Western Australia, Second Reading Speech, Legislative Council, 2 December 2003, 13872), the Minister said of cl 42:

This clause provides that an assessor must deduct from an award any amount that a victim would be entitled to receive from health insurance for loss, but for this Bill, or has received or will receive under a contract of insurance for the injury or loss. The clause seeks to ensure any health and insurance entitlements are not denied due to the potential for criminal injuries compensation, and it prevents double dipping. It combines section 24A and 26 of the Criminal Injuries Compensation Act 1985. The amendments to this clause seek to clarify that the compensation, which is to be taken into account, includes all types of compensation and is not limited to only compensation arising under a contract of insurance.

The proper construction of the Act - principles

36 A number of the principles relevant to the proper construction of the Act were outlined in Attorney General (WA) v Her Honour Judge Schoombee [29] - [44]. It is unnecessary to repeat them here, other than to reiterate that with respect to limiting provisions of the Act (such as s 42(3)), the observations in [41] of that decision are pertinent:

In a similar legislative context, Spigelman CJ observed in Victims Compensation Fund v Brown [2002] NSWCA 155; (2002) 54 NSWLR 668:

'With respect to a clause intended to be limiting, it is not appropriate to apply the principle of statutory construction that beneficial legislation should be construed liberally...

In the present proceedings, the Respondent submitted that the purpose was to compensate victims. Even if I were to accept a legislative purpose stated at that level of generality, that would not entail that any ambiguity must be construed in such a way as to maximise compensation... In any event, the very specificity of the provisions of the legislation indicate that the legislative purpose is to provide compensation in accordance with the Act and not otherwise [8] - [10].'

(Although Spigelman CJ was in dissent, his reasoning was endorsed by the High Court in Victims Compensation Fund Corp v Brown [2003] HCA 54; (2003) 201 ALR 260.)

37 It is also significant, in light of the appellant's submissions, to recall here the observations of French CJ and Hayne J in Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [23] - [26]:

It is as well to begin consideration of this issue by re-stating some basic principles. It is convenient to do that by reference to the reasons of the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue:

'This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.'

The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, '[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute' (emphasis added). That is, statutory construction requires deciding what is the legal meaning of the relevant provision 'by reference to the language of the instrument viewed as a whole', and 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'.

Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure. Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted. It is important in this respect, as in others, to recognise that to speak of legislative 'intention' is to use a metaphor. Use of that metaphor must not mislead. '[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have' (emphasis added). And as the plurality went on to say in Project Blue Sky:

'Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.'

To similar effect, the majority in Lacey v Attorney-General (Qld) said:

'Ascertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts. (footnote omitted.)'

The search for legal meaning involves application of the processes of statutory construction. The identification of statutory purpose and legislative intention is the product of those processes, not the discovery of some subjective purpose or intention.

A second and not unrelated danger that must be avoided in identifying a statute's purpose is the making of some a priori assumption about its purpose. The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions. As Spigelman CJ, writing extra-curially, correctly said:

'Real issues of judicial legitimacy can be raised by judges determining the purpose or purposes of Parliamentary legislation. It is all too easy for the identification of purpose to be driven by what the particular judge regards as the desirable result in a specific case. (emphasis added.)'

And as the plurality said in Australian Education Union v Department of Education and Children's Services:

'In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose. (footnote omitted.)'

See also City of Kwinana v Lamont [2014] WASCA 112 [47].

38 Further, statutes should generally be read in the ordinary way that a document is read, that is from the beginning onwards: Patman v Fletchers Fotographics Pty Ltd (1984) 6 IR 471, 474 - 475.

39 The appellant's submissions should not be accepted, for the following reasons.

40 Under s 3 of the Act, the definition of 'compensation award' is to be applied in s 42 unless the contrary intention appears. The suggestion that the term 'compensation award' in s 42(3) should be read as meaning a 'notional award' or an 'assessment award' faces two fundamental obstacles. First, it involves reading words into s 42(3) which are not there. Secondly, there is no inconsistency in using the defined term 'compensation award' in s 42(3). On the contrary, that is the obvious and natural meaning to be given to that term in s 42(3) having regard to the text and structure of the Act as a whole.

41 In terms of the structure of the Act, s 36 - s 40 provide a range of circumstances where there is a prohibition on the making of a 'compensation award'. Those provisions operate in the circumstances specified to preclude the making of any 'compensation award' at all. Their location within pt 4 tends to confirm that the assessor is not required to consider the question of deductions under s 42 unless and until he or she has determined whether or not a 'compensation award' should be made and if so the amount of any such award.

42 Also, the Act distinguishes between a 'compensation award', on the one hand, and the payment of any compensation awarded under the Act, and an amount of compensation 'awarded' to the victim under the compensation award, on the other: s 46 and s 68(1)(d). These provisions confirm that the broad structure for payment of compensation under the Act involves, first, the determination of whether, and if so in what amount, a 'compensation award' may be made; secondly, the deduction of any amounts from that 'compensation award' required under s 42; and thirdly, the payment or 'awarding' of an amount of compensation under the Act. It is only the third figure which is the subject of the charge on consolidated revenue. The appellant's submissions conflate these three steps and, in substance, treat a 'compensation award' under s 30 as the amount to be paid or awarded as compensation under the Act, subject only to s 31(1), rather than the amount upon which other provisions operate before a final amount of compensation is determined and then paid or 'awarded' (s 46).

43 Further, there is no foothold in the language of s 42(3) for an argument to the effect that s 42(3) is addressing a notional compensation award which is split into different elements to which the deductions in s 42 are to be applied differentially. Under s 42(3) a (single) 'compensation award' in relation to any injury or loss is the subject of the deduction. The deduction is (relevantly) 'any amount' that the victim has received. The words 'injury or loss' cannot reasonably be interpreted as signifying that the 'compensation award' is to be disaggregated into a notional award for 'injury', and a notional award for 'loss', for the purposes of the deduction required by that subsection (see written submissions pars 30 - 31). It is true that s 42(2) refers only to 'loss', but that is because it is specifically addressing a particular category of insurance contract. It provides no foundation for regarding a 'compensation award' in s 42(3) as a notional award, and for disaggregating the notional award into different notional sub-awards for injury and loss. The words 'injury or loss suffered by a victim or a close relative of a deceased victim' in s 42(3) reflect the language of s 30 (and in particular s 30(1) and (3)). The language is not tautological, but is evidently used to make it plain that s 42(3) is addressing a 'compensation award' made under s 30 (read with s 31).

44 Also, the aggregation to which s 31(1) refers is the amount which may be awarded under subsection (1) (for injury and any loss suffered by the victim) and subsection (3) (for the loss suffered by the relatives of the deceased victim) of s 30. It provides no basis for the appellant's construction.

45 Also, the proposition that the purpose or object of the Act is, generally speaking, to provide compensation out of the public purse for all victims of crime, is incorrect. The provisions of the Act, construed in their ordinary and natural meaning, do not reveal that that is the purpose of the legislature. Rather, the amicus was correct to observe that the policy of the Act is evidently to provide a publicly funded means by which victims of crime can receive some payments of compensation for injury or loss incurred as a result of criminal activity 'in some circumstances' (as the long title indicates). It does so on the basis that there is to be a deduction from the award of the amount of compensation or damages which a victim receives from another source. In that manner, the limited public resources engaged by the Act are directed to victims of crime who would not otherwise be compensated for their injury or loss. This is confirmed by s 21, which provides, in effect, that an assessor may defer dealing with the question of compensation and require the victim first to take steps to recover any amounts to which he or she may be entitled independently of the operation of the Act. A provision of that kind indicates that the legislature was not merely concerned with the avoidance of 'double dipping' (itself a term the meaning of which is dependent upon context) as the appellant contended, but more broadly intended that the victim should exhaust other means of compensation available to him or her before there is any recourse to payment from the public purse.

46 The anomalies to which the appellant referred assumed, rather than demonstrated, the correctness of the appellant's construction of the Act. The example given by the appellant, referred to in [32] above, appears to serve no useful illustration for present purposes. Victim A has received compensation from alternative sources. Victim B has not. Section 42(3) could have no application to victim B whether (adopting the language of the appellant's submissions) s 31(1) is 'applied' prior to s 42, or in the 'reverse order'.

47 Moreover, the appellant's construction would produce a fundamental obstacle to the coherent operation of the Act. Section 42(3) and s 68 deal in substance with the same subject matter - the receipt of an alternative source of payment by way of compensation or damages or insurance. The only difference between the two is essentially that of timing - whether the alternative payment is received before or after an amount of compensation is awarded under the Act. On the appellant's construction, s 42(3) would operate so that if the 'notional' compensation award was say $200,000, and the alternative source of compensation, allegedly deductible under s 42(3), was say $120,000, then the victim would receive an award of compensation under the Act of $75,000 ($80,000 reduced to the maximum sum of $75,000). If however the alternative amount of compensation did not come to light or for any other reason was not deducted under s 42(3) prior to an amount of compensation being awarded, then the victim would still receive $75,000 (the 'notional' award of $200,000 reduced to the maximum sum of $75,000), but would subsequently be required to pay $75,000 to the State under s 68(1), leaving the victim with nothing. In other words, the substantive relief provided by the operation of the Act would depend upon an accident of timing in otherwise identical circumstances.

48 The appellant sought to explain the inconsistency on two bases. First, that it would not likely arise much as a matter of practice. Secondly, that the disparity in outcome accorded with the common law principle that damages are awarded once and for all, and that subsequent events do not alter the amount of compensation awarded by way of a judgment.

49 Neither submission can be accepted. It is evident that s 42 and s 68 were intended to operate harmoniously. The appellant's first point, that the legislature objectively intended an inconsistency in the operation between the two, on the basis that the inconsistency would only arise infrequently in practice, has nothing to commend it. As to the second point, the analogy appears at best to be irrelevant and, at worst (from the appellant's point of view), to be a point against the appellant. It is irrelevant because the question is whether the provisions of the Act operate harmoniously as a whole; not whether the common law produces a similar anomalous result in certain circumstances. The point is against the appellant's argument in that in the example given, after the maximum amount is awarded under the Act, a subsequent event in effect extinguishes the earlier award.

50 Some final observations may be made. First, the extrinsic material to which the appellant referred does not assist the appellant. The effect of s 42(3) is to prevent 'double dipping' in the sense that other sources of compensation are to be deducted from a 'compensation award'. In any event, the extrinsic material could not control the meaning of the words used in the statute. Secondly, the amicus said that the primary judge's construction of s 42 was consistent with a number of District Court decisions in relation to s 42 of the Act and its statutory predecessors. The cases to which he referred included Baker v Assessor of Criminal Injuries Compensation (1998) 20 SR (WA) 377, 381; Reed v Reed [2002] WADC 11 [2], [4]; and Curran v Champion [2012] WADC 9 [108] - [109]. It is unnecessary to examine the correctness of that proposition for the disposition of this application. Thirdly, counsel for the appellant referred to certain decisions which, he said, supported the construction being advanced on appeal, particularly Re Korber (1992) 9 SR (WA) 32 (Clarke DCJ). Again, it is unnecessary to consider those cases here save to say that they have no persuasive effect insofar as they reflect the erroneous construction advanced by the appellant.

Injuries Compensation Act 2003

Compensation and Injury Management Act 1981

Injuries Compensation Act 1985

BAKER -v- HIS HONOUR JUDGE STONE OF THE DISTRICT COURT OF WESTERN AUSTRALIA [2015] WASCA 56 (20 March 2015)

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Judgment (118 paragraphs)

BAKER -v- HIS HONOUR JUDGE STONE OF THE DISTRICT COURT OF WESTERN AUSTRALIA [2015] WASCA 56 (20 March 2015)

Legislation Cited (5)

Cases Cited (5)