Consideration
18 It is well recognised that the SRC Act is remedial or social legislation and is to be construed beneficially. In Bortolazzo v Comcare (1997) 75 FCR 385 at 388, Heerey J said:
[T]he Act is social legislation which ought to be construed, in the event of ambiguity, liberally in favour of injured employees … But a liberal interpretation is one thing, rewriting the statute is another.
See also Telstra Corporation Limited v Peisley [2006] FCAFC 79, (2006) 151 FCR 275 at [35]; Comcare v Pires [2005] FCA 747, (2005) 143 FCR 104 at [44]; Guppy v Australian Postal Corporation [2013] FCA 489, (2013) 212 FCR 380 at [14]. As in all cases of statutory construction, close regard must be had to the language of the statute.
19 In my opinion, the appellant's critique of the AAT's reasoning by reference to s 16(1) of the SRC Act has some force. As noted earlier, the AAT reasoned that the "primary decision" to be made by Comcare was whether each separate attendance by an injured employee at a place of treatment was reasonably justified. Because that was so, the AAT reasoned that subs (6) had also to be applied, and reapplied, to each day's journey.
20 This reasoning seems to rest on some assumptions about the way in which treatment will be provided and charged by a medical provider which may not always be sound. The elements of the liability of Comcare in respect of the costs of medical treatment under s 16(1) are these:
(i) An employee suffers a compensable injury;
(ii) The employee obtains medical treatment in relation to that injury;
(iii) It was reasonable in all the circumstances for the employee to obtain that treatment for the injury;
(iv) A cost is incurred in respect of the provision of the treatment.
When those elements are established, Comcare is liable to pay compensation in an amount which it determines is appropriate for that medical treatment.
21 As noted earlier, the definition of "medical treatment" in s 4 is capable of including a course of treatment as well as each particular attendance by a practitioner on an injured employee. The primary question for Comcare, if there be a primary question, is the reasonableness of the injured employee obtaining the treatment. It is likely that there will be at least some cases in which the liability of Comcare under s 16(1) will arise without there being any necessity to consider the reasonableness of each individual attendance by the medical provider on the injured employee. It is not uncommon for medical providers to charge a lump sum fee for a particular procedure, which fee takes into account all attendances both before, at, and after the procedure. In a case of that kind, Comcare's focus under s 16(1) is likely to be on the reasonableness of the treatment as a whole, rather than the reasonableness of each particular attendance of the practitioner on the injured employee.
22 It may be accepted that Comcare must determine in relation to each journey for which compensation is claimed whether it was "necessary" for the purpose of obtaining the compensable medical treatment. That does require an assessment in relation to each individual journey.
23 Although the appellant did not refer to s 23(b) of the Acts Interpretation Act, many of his submissions seemed to depend for their force on its application. Section 23(b) provides that words in any Act in the singular number include the plural. The application of s 23(b) is however subject to any contrary intention appearing in the particular act: Acts Interpretation Act s 2(2). Absent the application of s 23(b), it is reasonably plain in my opinion that s 16(7) refers on its natural and ordinary meaning to each individual journey.
24 The purpose of provisions such as s 23 is to obviate the wordiness that would otherwise be necessary if the legislature had to indicate on each occasion that the singular included the plural and vice versa. The Privy Council discussed the purpose of the New South Wales counterpart to s 23(b) in Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651 at 656:
Such a provision is of manifest advantage. It assists the legislature to avoid cumbersome and over-elaborate wording. Prima facie it can be assumed that in the processes which lead to an enactment, both draughtsman and legislators have such provisions in mind. It follows that the mere fact that the reading of words in a section suggests an emphasis on singularity as opposed to plurality is not enough to exclude plurality. Words in the singular will include the plural unless the contrary intention appears. But in considering whether a contrary intention appears there need be no confinement of attention to any one particular section of an Act. It must be appropriate to consider the section in its setting in the legislation and furthermore to consider the substance and tenor of the legislation as a whole.
See also Sherzad v Minister for Immigration and Citizenship [2008] FCAFC 145; (2008) 170 FCR 105 at [12].
25 I accept that no manifest incongruity is apparent if one reads the terms "a journey" and "the journey" in s 16(6) and (7) respectively in plural. However, I consider that there are a number of matters which, taken together, indicate that those terms are not be understood as including the plural, that is, that there is a contrary intention of the kind contemplated by s 2(2) of the Acts Interpretation Act.
26 First, it is appropriate to reason, as the AAT did, that the 50 km threshold is intended to have practical effect. It manifests a legislative intention that injured employees have travelled a minimum distance before being entitled to reimbursement of travelling expenses. That practical effect is likely to be considerably diminished if the threshold may be satisfied by the aggregation of multiple journeys.
27 Secondly, the term "the reasonable length" in subs (7)(a) is apt in relation to a single journey, but seems less appropriate as a reference to multiple journeys. Further, if s 23(b) is to be applied to s 16(7), it should be applied consistently so that the term "reasonable length" is also understood in the plural. A requirement that the "reasonable lengths" of necessary journeys exceed 50 km is more consistent with each individual journey having to exceed 50 km and, to my mind, is a strong indication that subs (7)(a) is not apt to accommodate an aggregation of journeys to satisfy the 50 km threshold.
28 Thirdly, subs (7)(a) uses the term "such a journey". If the legislature had intended the provision to refer to the reasonable length of journeys in the aggregate, it would, to my mind, have been much more natural to refer to "such journeys". The same point can be made in respect of the same term in the elaboration of the expression "numbers of kilometres travelled" in subs (6)(c).
29 Fourthly, the legislature thought it appropriate to include in parentheses reference to the return part of "the" journey. This is an indication that the legislature turned its mind to matters to be taken into account in determining whether the threshold is satisfied. The fact that it did so but made no reference to journeys in the plural is, to my mind, significant. It would have been natural in this context for the legislature to have made some reference to multiple journeys, had that been what was intended.
30 Fifthly, the use of the definite article "the" in reference to the return part of the journey after the use of the indefinite article earlier in subs (7)(a) is an indication that the provision refers to a particular journey, rather than journeys generally.
31 Finally, I refer to the legislative history of subs (7). When first enacted in the Commonwealth Employees' Rehabilitation and Compensation Act 1988, s 16(7) provided:
The Commission is not liable to pay compensation under subsection (6) unless:
(a) The journey covered a substantial distance; or
(b) Where the journey involved the use of public transport or ambulance services - the employee's injury reasonably required the use of such transport or services regardless of the distance involved.
The expression "the journey covered a substantial distance" does not seem particularly apt to describe the effect of multiple journeys. It is reasonable to infer that the threshold of 50 km was inserted into s 16(7) in order to avoid the necessity for an evaluation in the circumstances of each individual claim necessitated by the word "substantial", but not otherwise to change the effect of subs (7). However, the legislative history is of only slight assistance in the present circumstances.
32 The earlier decisions of the AAT to which the Senior Member referred are not of assistance in the present context. All determined that s 16(7) refers to individual journeys only and not to aggregation of multiple journeys, but none address the issues of construction involved.
33 The appellant submitted that the Senior Member had overlooked, when referring to the decisions in Re Horan and Re Purser that they concern s 16(7) in its original form. There is no evidence that the Senior Member did make that error. He said only that his conclusion was "consistent" with earlier decisions of the AAT. In that respect he was correct.
34 The appellant submitted that it was difficult to understand why the figure of 50 km, as opposed to some other figure, had been selected. That may be so, but the selection of the figure of 50 km is not a matter for review presently. This Court's function is to construe the legislation as it stands.