Central West Group Apprentices Ltd v Coal Mines Insurance Ltd

Coal Industry Act 1946 (Cth) Coal Industry Act 1946 (NSW) Coal Industry Act 2001 (NSW) Coal Industry Repeal Act 2001 (Cth) Coal Mine Health and Safety Act 2002 (NSW) Mining Act 1992 (NSW) LEGISLATION CITED: Workers Compensation Act 1926 (NSW) Workers Compensation Act 1987 (NSW) Workers Compensation Legislation Amendment Act 1995 (NSW) Workers Compensation Legislation Amendment Act 1998 (NSW) Workers Compensation Legislation Amendment Act 2000 (NSW) Workers Compensation Legislation Amendment Act 2001 (NSW) Workers Compensation Legislation Further Amendment Act 2001 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Allianz Australia Insurance Ltd v GSF Australia Pty Limited [2005] HCA 26; 221 CLR 568 Badior v Muswellbrook Crane Service Pty Limited (2004) 2 DDCR 177 CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384 Ellavale Engineering Pty Limited v Pilgrim [2005] NSWCA 272; 2 DDCR 744 Gosper v Christopherson [1986] HCA 28; 160 CLR 423 Kingston v Keprose Pty Limited (1987) 11 NSWLR 404 CASES CITED: Newcastle City Council v GIO General Ltd [1997] HCA 53; 191 CLR 85 Northern Territory v Collins [2008] HCA 49 Presland v Ellavale Engineering Pty Limited (2005) 3 DDCR 178 Re Federated Liquor and Allied Industries Employees' Union of Australia, Ex parte the Australian Workers' Union (1976) 51 ALJR 266 The King v Central Reference Board; Ex parte Thiess (Repairs) Pty Limited [1948] HCA 9; 77 CLR 123 The Queen v Coldham; Ex parte Australian Workers' Union [1983] HCA 35; 153 CLR 415 The Queen v Moore; Ex parte Federated Miscellaneous Workers' Union of Australia [1978] HCA 51; 140 CLR 470

Central West Group Apprentice Ltd (First Appellant) PARTIES: Allianz Australia Workers Compensation (NSW) Ltd (Second Appellant) Coal Mines Insurance Ltd (First Respondent) James Alexander South (Second Respondent)

COUNSEL: P Deakin QC, G Young (Appellants) I D Roberts SC, B A Odling (Respondents)

Ellison Tillyard Callanan (Appellants) SOLICITORS: Sparke Helmore (Sydney) (First Respondent) Higgins & Higgins (Lithgow) (Second Respondent)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40660/07

ALLSOP P GILES JA BELL JA 12 December 2008 CENTRAL WEST GROUP APPRENTICES LTD v COAL MINES INSURANCE LTD Headnote

Mr South was employed by Central West Group Apprentices Ltd (the first appellant) as an apprentice fitter and turner. He injured his knee while working at the Angus Place Colliery. He claimed compensation and his rights were redeemed by a lump sum payment of $150,000, which was paid by Central West's workers compensation insurer, Allianz (the second appellant). Central West and Allianz claimed, by way of cross-claim, that Coal Mines Insurance Ltd (the respondent) was liable to indemnify Central West and Allianz for the compensation paid by them to Mr South. The District Court (Truss DCJ) dismissed the cross-claim. Central West and Allianz appeal from the dismissal.

The primary issue below and on appeal was whether Central West was an employer in the coal industry.

Was Central West an "employer in the coal industry"

1. The phrases "employer in the coal industry" requires a substantive connection between the entity and the coal industry to satisfy the relationship required by the preposition "in", beyond merely being the employer of a person who works in and about a mine: [50]. The King v Central Reference Board; Ex parte Thiess (Repairs) Pty Limited [1948] HCA 9; 77 CLR 123, applied

Ellavale Engineering Pty Limited v Pilgrim [2005] NSWCA 272; 2 DDCR 744; Re Federated Liquor and Allied Industries Employees' Union of Australia; Ex parte the Australian Workers' Union (1976) 51 ALJR 266, considered.

Presland v Ellavale Engineering Pty Limited (2005) 3 DDCR 178 ; The Queen v Moore; Ex parte Federated Miscellaneous Workers' Union of Australia [1978] HCA 51; 140 CLR 470; The Queen v Coldham; Ex parte Australian Workers' Union [1983] HCA 35; 153 CLR 415, referred to.

Badior v Muswellbrook Crane Service Pty Limited (2004) 2 DDCR 177, not followed.

2. This involves an assessment of the substantial character of the employer and its business and whether it was "in" the coal industry, not whether all or virtually all of its employees are working in or about a coal mine: [51].

Was the redemption paid to Mr South recoverable under the policy of CMI?

3. If the above conclusion not be correct, and if Central West is an employer in the coal industry because it employed Mr South who was a coal miner, the redemption moneys fell within insuring clause (a) of CMI's policy: [68].

Gosper v Christopherson (1986) 160 CLR 423, considered.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40660/07

ALLSOP P GILES JA BELL JA

12 December 2008 CENTRAL WEST GROUP APPRENTICES LTD v COAL MINES INSURANCE LTD Judgment 1 ALLSOP P: The first appellant ("Central West") is a company that provides workers and apprentices to work places. Mr South (the plaintiff in the proceedings in the District Court in the Coal Miner's Workers Compensation List) was employed by Central West as an apprentice fitter and turner. He injured his knee while working at the Angus Place Colliery. He claimed compensation and his rights were redeemed by a lump sum payment of $150,000. This was paid by the second appellant ("Allianz") which was the workers compensation insurer of Central West. 2 Central West and Allianz then claimed by way of cross-claim in the District Court proceedings that the respondent ("CMI") was liable to indemnify Central West and Allianz for the compensation paid by them to Mr South. The District Court (Truss DCJ) dismissed that cross-claim. Central West and Allianz appeal from that dismissal. The correct question was whether CMI was liable to indemnify Central West, and it may not have been necessary or appropriate for Allianz to be a party to the appeal; it is unnecessary to consider this matter. 3 There was no issue but that Mr South was employed in or about a coal mine. 4 The agreed facts that were before the District Court were as follows:

1. Angus Place Colliery was a coal mine within the meaning of the Act.

2. At the relevant time the cross-claimant employed approximately between 900 and 1000 apprentices or trainees in various trades and occupations.

3. Approximately 4% of the employees of the cross-claimant were working in coal mines in 2002.

4. In July 2002 the cross-claimant had a workers compensation policy with Allianz but not with the cross-defendant. (The "cross-claimant" referred to was Central West.) 5 The liability of CMI to indemnify Central West and Allianz for the payments to Mr South depends upon the proper construction of the Workers Compensation Act 1987 (NSW) (the "1987 Act"), s 7A, and in particular s 7A(4). That section is in the following terms: (1) The workers compensation company (within the meaning of the Coal Industry Act 2001 ) is taken to be a licensed insurer that is a specialised insurer under, and for the purposes of, this Act . (2) However, the following provisions of this Act do not apply to or in respect of the workers compensation company: (a) Division 6 of Part 4, (b) sections 156 and 156B, (c) Divisions 1A, 2-5, 6A and 7 of Part 7. (3) For avoidance of doubt: (a) an employee of an employer in the coal industry is not eligible to make a claim under Division 6 of Part 4, and (b) a person who is taken, under Schedule 1 to the Workplace Injury Management and Workers Compensation Act 1998 , to be a worker employed by another person is not entitled to make a claim referred to in paragraph (a) if the other person by whom the person is taken to be employed is engaged in the coal industry. (4) The workers compensation company is taken to be the insurer under this Act of all employers in the coal industry (whether or not any such employer maintains a policy of insurance with that company) .

6 The proposition contended for by Central West and Allianz that was rejected by Truss DCJ was that the "workers compensation company" (that was accepted to be CMI) was taken to be the workers compensation insurer (the "insurer under this Act") of Central West (that company being an "employer in the coal industry"). 7 The central point of controversy in this proposition and on the appeal was whether Central West was "an employer in the coal industry".

The primary judge's approach 8 Truss DCJ concluded that the words "employer in the coal industry" were to be understood by reference to the test propounded by Bishop DCJ in Badior v Muswellbrook Crane Service Pty Limited (2004) 2 DDCR 177 at [54] and followed by her Honour on a later occasion in Presland v Ellavale Engineering Pty Limited (2005) 3 DDCR 178. In Badior, Bishop DCJ said (at 191 [54]): In order to arrive at a workable system an employer in the coal industry must have virtually all of its employers working in or about a coal mine pursuant to Sch 6, Pt 18. With the induction and other safety requirements, the vast majority of employees must be qualified to and actually work in or about a mine site … 9 Applying this test of a majority of employees, Truss DCJ found that Central West was not an employer in the coal industry.

10 In the event that she might be found to be wrong in this approach, Truss DCJ considered the claim for indemnity in respect of the redemption moneys. Her Honour said that she would have rejected the claim for indemnity on the basis that the redemption moneys did not fall within CMI's policy as "compensation that the Employer becomes liable to pay under the Act" or "independently of the Act".

The primary issue: Is Central West an "employer in the coal industry"? 11 The appellants submitted that Badior was wrong and that the answer to the question did not require any assessment of the number of employees engaged in coal mine work (or indeed any characterisation of the employer's business). They submitted that the type of employer referred to reflected the width of the reach of the 1987 Act to "coal miners" in Part 18 of the 1987 Act: "a worker employed in or about a mine" (Sch 6 Pt 18, cll1 (1) and (2) and 3(4)). It was submitted that an employer in the coal industry was an employer who employed a worker employed in or about a coal mine. 12 CMI first submitted that Truss DCJ was correct in following Badior; though Badior was only faintly supported in this respect. In a notice of contention, it submitted that a "substantial character" test should be applied to assess the business of Central West, that is, a factual enquiry as to the characterisation of the employer's business. It was submitted, Central West failed any relevant test.

The history of the provisions in question 13 Though statutory interpretation is ultimately a text based enquiry: Northern Territory v Collins [2008] HCA 49 at [16] (Gummow ACJ and Kirby J), context and enactment history are undeniably relevant: CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384; Newcastle City Council v GIO General Ltd [1997] HCA 53; 191 CLR 85; and Allianz Australia Insurance Ltd v GSF Australia Pty Limited [2005] HCA 26; 221 CLR 568. 14 I propose to set out the historical context of the provisions in question; though, I should say at the outset that their consideration adds little to the necessary textual analysis in the resolution of the problem as to the meaning of s 7A(4). 15 Coal miners have received differential treatment under the 1987 Act since it was introduced - see Sch 6 Pt 18 entitled "Special provisions relating to coal miners". By cl 1 coal miners continued to receive weekly compensation at the (slightly lower) rate under the Workers Compensation Act 1926 (NSW) (the "1926 Act"), but retained the beneficial right (otherwise lost under the 1987 Act) to redeem their entitlements by lump sum payment, and retained the regime that included deemed total incapacity under the 1926 Act, s 11(2). Later amendments to Sch 6 Pt 18 added special beneficial provisions for coal miners. 16 In 2001, substantial amendments were made to the 1987 Act. With some limited exceptions, these changes (which narrowed certain rights of workers) did not apply to coal miners: Sch 6 Pt 18 cl 3(1). In cl 3, there was inserted a definition of the phrase "coal miners" for the purposes of the clause, being "workers employed in or about a mine": cl 3(4). Until this time, the meaning of the phrase "coal miner" was to be inferred to be to the same effect from the heading of Sch 6 Pt 18: Ellavale Engineering Pty Limited v Pilgrim [2005] NSWCA 272; 2 DDCR 744 at [2]-[3] (Handley JA). 17 Section 7A of the 1987 Act and s 9A of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the "WIM Act") were inserted into the 1987 Act and WIM Act by the Coal Industry Act 2001 (NSW). Section 7A is set out above. Section 9A of the WIM Act is in the following terms: (1) The workers compensation company (within the meaning of the Coal Industry Act 2001 ) is taken to be a licensed insurer that is a specialised insurer under, and for the purposes of, this Act. (2) However, the following provisions of this Act do not apply to or in respect of the workers compensation company: (a) sections 146 and 146A, (b) Parts 3, 4, 5, 6, 7, 8 and 9 of Chapter 5. (3) For avoidance of doubt: (a) an employee of an employer in the coal industry is not eligible to make a claim under Part 9 of Chapter 5, and (b) a person who is taken, under Schedule 1, to be a worker employed by another person is not entitled to make a claim referred to in paragraph (a) if the other person by whom the person is taken to be employed is engaged in the coal industry. (4) The workers compensation company is taken to be the insurer under this Act of all employers in the coal industry (whether or not any such employer maintains a policy of insurance with that company). 18 The Coal Industry Act 2001 (NSW) was passed in the context of the dissolution of the Joint Coal Board that had been set up by the Coal Industry Act 1946 (Cth) and the Coal Industry Act 1946 (NSW). The dissolution occurred upon the commencement of the Coal Industry Repeal Act 2001 (Cth), s 4(1). Section 4(2) and (3) of that Commonwealth Act set out the then intentions of the Parliament of New South Wales:

… (2) It is the intention of the Parliament that a law of New South Wales may: (a) make provision for the transfer of the assets, rights and liabilities of the Joint Coal Board; and (b) make provision for the transfer of the members of staff of the Joint Coal Board immediately before the dissolution of the Board; and (c) make provision for any other matter that is incidental to the dissolution of the Joint Coal Board. (3) In this section: assets means any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description (including money), and includes securities, choses in action and documents. Joint Coal Board means the body corporate constituted under: (a) the Coal Industry Act 1946 ; and (b) the Coal Industry Act 1946 of New South Wales. liabilities means all liabilities, debts and obligations (whether present or future and whether vested or contingent). rights means all rights, powers, privileges and immunities (whether present or future and whether vested or contingent).

19 The Coal Industry Repeal Act 2001 (Cth), s 6 provided for the existing workers compensation scheme established by the Joint Coal Board as follows: (1) Any workers' compensation scheme established by the Joint Coal Board (within the meaning of section 4 of this Act) and in operation under section 26 of the Coal Industry Act 1946 immediately before the repeal of that Act is taken to have been established by the company nominated under clause 3 of Schedule 8 to the Coal Industry Act 2001 of New South Wales. (2) This section does not limit section 4.

20 Clause 3 of Schedule 8 of the Coal Industry Act 2001 (NSW) was in the following terms: Any workers compensation scheme established by the Joint Coal Board and in operation under section 27 of the Coal Industry Act 1946 immediately before the repeal of that section is taken to have been established by the approved company nominated by the Minister for the purposes of this clause.

21 In 1948, the Joint Coal Board by an order authorised by the relevant legislation required "each employer in the coal industry" in New South Wales to "effect with the Joint Coal Board all workers compensation insurance in respect of … employees who are mine workers." At around this time, the Joint Coal Board purchased all the shares in CMI. The phrase was not defined in the legislation, Commonwealth or State.

22 The Coal Industry Act 2001 (NSW), Pt 2 dealt with the dissolution of the Joint Coal Board and the Mines Rescue Board. Part 3 dealt with "approved companies" that were to be approved by the Minister if they had certain characteristics, including joint ownership by the relevant union in the industry (the CFMEU) and by a body representing the employers (the Minerals Council): s 9. An approved company was to exercise such functions as were specified in its notice of approval. The range of functions were set out in s 10(1)(a)-(m), including s 10(1)(m) as follows: establishing or administering (or establishing and administering), or providing, workers compensation insurance schemes in relation to workers engaged in the coal industry. 23 The term "workers compensation company" was defined in s 3 to mean "the company for the time being approved under s 9 to exercise the functions referred to in s 10(1)(m)." This was CMI. 24 Division 6 of Part 3 was entitled "Certain obligations of owners and managers of coal mines and employers in the coal industry in relation to approved companies". Section 31 therein dealt with workers compensation. This section gave a form of monopoly in workers compensation insurance to CMI. Section 31 was in the following terms: (1) The workers compensation company has the power to require any employer in the coal industry in the State to effect with or through that company all workers compensation insurance in respect of the employer's employees in the industry. (2) An employer in the coal industry in the State must comply with any such requirement. (3) The following are specifically authorised by this Act for the purposes of the Trade Practices Act 1974 of the Commonwealth and the Competition Code of New South Wales: (a) any matter or thing done by the workers compensation company in imposing a requirement under this section, (b) any agreement entered into by or with the workers compensation company for the purpose of effecting workers compensation insurance in accordance with a requirement made under this section, (c) the conduct of the parties in entering into any such agreement, (d) the conduct of the parties in performing any such agreement. (4) The maximum penalty that may be imposed for failure to comply with a requirement under this section is: (a) in the case of a corporation - 100 penalty units for the first day the contravention occurs and an additional 50 penalty units for each subsequent day on which the contravention continues, or (b) in the case of an individual - 50 penalty units for the first day the contravention occurs and an additional 25 penalty units for each subsequent day on which the contravention continues. (5) In this section: (a) agreement includes a contract, arrangement or understanding, and (b) a reference to the workers compensation company or an employer in the coal industry includes a reference to the officers and agents of, and other persons duly authorised by, the company or employer concerned. 25 Descriptions of the legislative changes can be found in the Second Reading Speeches in both the Parliaments of the Commonwealth and New South Wales in respect of the Coal Industry Repeal Bill 2000 (Cth) and the Coal Industry Bill 2001 (NSW), respectively. 26 In the House of Representatives, the Hon Warren Entsch, stated the following: The Joint Coal Board was established in 1946 by mirror Commonwealth and New South Wales state legislation. The board had the task of addressing the parlous state of the New South Wales coal industry at the end of the war. Most of eastern Australia's industry was dependent on coal at that time. Consequently, the inaugural legislation provided the Joint Coal Board with sweeping powers over virtually every aspect of the New South Wales coal industry. These included control over mining methods, opening and closing of coalmines, distribution of coal including its purchase and sale, regulation of prices, employment in and recruitment to the coal industry, and power to acquire and operate any mine or to manage any mine. … Today the mission of the Joint Coal Board is to deliver quality service to protect, support and advance health and welfare in the New South Wales coal industry. Its four core functions are workers' compensation insurance, occupational health and rehabilitation, information services, and training. The Joint Coal Board is self funded and derives its income from workers' compensation premiums, income from investments and fees for services. … Following negotiations with the New South Wales government, it was jointly decided to transfer the full responsibility of the Joint Coal Board to the New South Wales government. This includes the transfer of all the assets, liabilities and rights of the Joint Coal Board to New South Wales. This is to ensure that the new corporation or entity established under New South Wales legislation to replace the Joint Coal Board has a financially sound base and continues to have the resources needed to maintain these important functions.

27 In the New South Wales Legislative Assembly, the Hon R Amery, Minister for Agriculture and Corrective Services said: The introduction of the Coal Industry Bill 2001 is a significant moment in the history of the coal industry in New South Wales. The Bill represents a break from the past, with new arrangements for the delivery of critical services to the coal industry, such as occupational health and safety, workers compensation and mines rescue. These services are currently provided by the Joint Coal Board - an agency jointly governed by the Coal Industry Acts of the Commonwealth and New South Wales - and the New South Wales Mines Rescue Board. The new arrangements set out in this Bill are necessary because the Commonwealth Government no longer considers that it has a role in the oversight and administration of the coal industry in this State. It has therefore decided to repeal the Commonwealth Coal Industry Act 1946 and withdraw from its involvement with the Joint Coal Board. Indeed, the Federal Parliament has already passed the Coal Industry Repeal Act 2001 . It is important to note that the Federal Government has undertaken to commence this Act only when these proposed reforms are in place in New South Wales. As a result of the Commonwealth decision, the New South Wales Government has decided to effectively repeal the New South Wales Coal Industry Act 1946 and the Mines Rescue Act 1994 to make way for the new arrangements. Current functions of the Joint Coal Board and the Mines Rescue Board will be performed by industry-owned and operated companies, which are to be approved by the relevant New South Wales Minister for the purpose. The industry parties will thereby take direct responsibility for the former functions of these boards. … Today, the Joint Coal Board continues to meet its charter through the provision of occupational health and rehabilitation services such as health assessments, injury management, work environment monitoring, health education services and a vocational retraining program. Coal Mines Insurance, a wholly owned subsidiary of the Joint Coal Board, provides workers compensation insurance services to all coal mines in New South Wales. However, as I mentioned earlier, the Commonwealth Parliament has now passed legislation that will end the involvement of the Federal Government with the Joint Coal Board. I note again that the Federal Government has agreed not to commence this legislation until New South Wales has its legislation in place for the new arrangements to commence. … Part 3 of the Bill enables the Minister to approve one or more companies registered under the Commonwealth's Corporations Act 2001 for the purpose of exercising one or more functions set out in the Bill. It is important to note that a company cannot be approved unless it is wholly owned in equal shares by the CFMEU and the New South Wales Minerals Council, or a subsidiary thereof, or if it is a wholly owned subsidiary of another approved company that is so owned. The Minister can also only approve one company at a time to provide mines rescue services, and one company to establish, administer or provide workers compensation services. An approved company must exercise those functions set out in its notice of approval. The functions that can be the subject of such a notice are set out in clause 10(1) of the Bill, and reflect the functions currently provided by the Joint Coal Board and the Mines Rescue Board. Broadly, these functions include providing occupational health and rehabilitation services for coal industry workers; promoting the welfare of coal industry workers, including monitoring and promoting matters (including the approval of training schemes) relating to the health and safety of those workers; monitoring dust in coal mines; establishing, administering or providing workers compensation insurance schemes in relation to coal industry workers; establishing, administering or providing administrative services in respect of industry superannuation schemes for coal industry workers and employees of approved companies; mines rescue services; and the collection, collation and dissemination of industry statistics, including statistics relating to the health and safety of coal industry workers.

28 By Schedule 7 to the Coal Industry Act 2001 (NSW) s 7A was inserted into the 1987 Act and s 9A was inserted into the WIM Act. 29 The Explanatory Memorandum to the Coal Industry Bill 2001 (NSW) stated the following about Schedule 7: Schedule 7 makes consequential amendments to other Acts, including the Workers Compensation Act 1987 and the Workplace Injury Management and Workers Compensation Act 1998. In particular, the Schedule amends those Acts so as to deem the workers compensation company a licensed insurer that is a specialised insurer under, and for the purposes of, those Acts. (The Joint Coal Board is currently such an insurer.) The amendments also make it clear that:

(a) certain provisions of those Acts do not apply to the workers compensation company, and (b) that company is taken to be the insurer of all employers in the coal industry (whether or not the employer maintains a policy of insurance with the company), and (c) an employee or a deemed employee of such an employer is not eligible to make a claim under the Uninsured Liability and Indemnity Schemes constituted by those Acts. 30 CMI submitted that this history and the terms of the 1987 Act, in particular s 7A(2) and (3), indicate the purpose of s 7A(4). It was submitted that s 7A(2) reflects how CMI is treated differently from other WorkCover insurers and self-insurers. This difference can be seen in relation to the provisions dealing with the uninsured liability and indemnity scheme, the recovery of penalties from employers who fail to obtain policies, and insurance premiums, licensing insurers, statutory funds and insurer guarantee fund. Under s 7A(3) an employee of an employer in the coal industry is not eligible to make a claim on the uninsured liability and indemnity scheme. It was submitted s 7A(4) can be understood to be there to ensure that if an employer in the coal industry did not have a policy of workers compensation insurance (with CMI: see the Coal Industry Act 2001 (NSW), s 31) an employer of such an employee could still claim against CMI. 31 This background advances the resolution of the relevant question of statutory interpretation (being the meaning of "employer in the coal industry") to only a small degree. It is clear that the Joint Coal Board administered a joint government controlled monopoly of workers compensation insurance and that this was transferred to an industry controlled (that is union and employer) monopoly. The issue is what was and is that monopoly: of insurance to companies bearing some characteristics to enable them to be called employers in the coal industry; or of insurance to companies which employed people in the coal industry and in that sense which were employers in the coal industry? 32 It was submitted by CMI that the latter of these constructions, being that which was favoured by Central West and Allianz, required the insertion of words into the statute, a process not lightly to be undertaken and only when there has been inadvertence by Parliament: Kingston v Keprose Pty Limited (1987) 11 NSWLR 404. Whilst that principle of construction can be accepted for present purposes, I do not agree that the appellants' argument requires its application. The relevant process is one of construction and interpretation of the words used. Neither contending alternative requires the insertion of words, only the ascription of meaning. 33 The decision of this Court in Ellavale Engineering v Pilgrim concerned the meaning of the phrase "a worker employed in or about a mine" in the 1987 Act, Sch 6 Pt 18. The Court refused to limit the class of workers covered by that phrase to a worker (a "coal miner") employed by a mine operator. The Court noted (see [2005] NSWCA 272; 2 DDCR 744 at 763-4 [63] per Beazley JA) that Sch 6 Pt 18 Ch 1 lacked the words used in s 7A(4): "of an employer in the coal industry". At [86] Beazley JA did not necessarily see any incongruity in a worker obtaining benefits as a worker employed in or about a mine and that worker's employer not being "an employer in the coal industry". Her Honour said at [86] and [88]: [86] A question also arose as to whether the appellant was "an employer in the coal industry" within the meaning of s 7A(4) of the WCA. As I understand the argument, there could be an incongruity if the respondent was a coal miner within the definition but the appellant was not an employer in the coal industry. For my part, I do not consider there to be an incongruity, or at least one relevant to the interpretation of "coal miner". The provisions operate independently and are directed to quite different ends. Sch 6 Pt 18 of the WCA is directed to preserving benefits for certain categories of persons. Sections 7A and 9A are directed to the question of who bears the burden of insurance in the coal industry. That this is so reinforces, in my opinion, the respondent's argument that the definition of "coal miner" bears the meaning for which he contends. … [88] I should also add that the insurance arrangements relating to employers in the coal industry are not straightforward. For example, s 7A(4) of the WCA provides that the workers compensation company (that is, Coal Mines Insurance) "is taken to be the insurer under this Act of all employers in the coal industry (whether or not any such employer maintains a policy of insurance with that company)". Apart from the argument that arose in relation to the insurance provisions of the WCA referred to above, there was no evidence before the Court at first instance as to how insurance relating to employers in the coal mining industry operates. Nor was there any evidence as to how, why or whether insurance arrangements peculiar to the coal mining industry affected the construction of the phrase "coal miner" within Sch 6 Pt 18. If it were relevant, the Court would have expected there would have been evidence on the point as well as submissions to this Court based on such evidence. In the absence of evidence having been adduced I would not be prepared to entertain any argument that the construction of "coal miner" within Sch 6 Pt 18 was affected by any special insurance provisions or concerns peculiar to the coal mining industry. It is worth commenting in any event that the setting of premiums for workers compensation insurance purposes is a complex and in some respects artificial exercise: see Staging Connections Pty Limited v WorkCover Authority of New South Wales [2004] NSWCA 357. 34 Pilgrim's case does not ultimately assist with the resolution of the present problem. 35 The text and immediate enactment history of the 2001 amendments to the 1987 Act, Sch 6 Pt 18 cl 3(4) and s 7A, and the WIM Act, s 9A is important. Clause 3(4) in Sch 6 Pt 18 was inserted by Sch 4.1 [2] of the Workers Compensation Legislation Amendment Act 2001 (NSW), which received assent on 17 July 2001. Clause 3(4) contained a definition of the phrase "coal miners" for the purpose of cl 3, which made the 2001 amendments to the 1987 Act inapplicable to "coal miners". The phraseology used was "workers employed in or about a mine" being the phraseology used in cl 1 already. These amendments commenced on 1 January 2002. Later in 2001, the Coal Industry Act 2001 (NSW) (assented to on 14 December 2001) inserted s 7A into the 1987 Act and s 9A into the WIM Act. The Coal Industry Act 2001 (NSW) also commenced on 1 January 2002. These near contemporaneous, and cognate, statutes used this different terminology. 36 Though the positing of different terminology that could have been used by Parliament can be of limited utility, here the phrase "all employers in the coal industry" was used, not "all employers of coal miners" or "all employers who employ workers who are employed in or about a mine". 37 Recognising ultimately that the enquiry as to meaning is text based, the task is to give context to the phrase "employers in the coal industry". It is not the employee that is to work in the industry, but the employer must be "in" the industry. The employer is a person or entity. It must employ a worker or workers to be an employer, but it, as a person or entity, must be "in" the coal industry. This can be seen to involve at least two enquiries: first the nature and limits of the term "coal industry"; and, secondly, the relationship between the employer and the coal industry such that it can be said that the former is "in" the latter. 38 Whilst they cannot be taken to govern or legally bind this Court since they concern different provisions and different words, a number of cases give assistance in the resolution of the problems by the consideration of similar expressions. In The King v Central Reference Board; Ex parte Thiess (Repairs) Pty Limited [1948] HCA 9; 77 CLR 123 a question arose whether a company whose sole business was the repair of machinery could be said to be engaged in, or to be in, the coal mining industry. Its business was situated not far from a coal mine operated by a sister company (all the shares in the two companies being owned by the one person). The question was relevant because the Central Reference Board had authority only to deal with disputes "in the coal mining industry". After discussing the meaning of the phrase "coal mining industry" at 130-131, and the factual circumstances at 131-134, Latham CJ turned, at 135, to the question whether the company was "engaged in the coal mining industry" where he said: Many industries supply goods to or provide services for other industries. A motor garage may be almost exclusively engaged in repairing trucks for a transport company, and it may do such work under a contract under which it is entitled to obtain and bound to do all the transport company's work. But it would not follow that the motor garage was in the transport industry. Similarly, an engineering workshop which does all the repairs for a coal mine and a gold mine and a shipping company would not, according to the ordinary use of language, be said to be engaged in the coal-mining industry, the gold-mining industry and the shipping industry. There would be as much reason for saying that it was engaged in any one of them as for saying that it was engaged in any other of them. There are obvious difficulties in saying that it is at one and the same time in each of these industries and in the engineering industry as well. Thus the fact that an enterprise provides a service for a particular industry cannot be held to identify that enterprise with that industry so as to make it a part of the industry. In my opinion the question to be asked is - What is the substantial character of the industrial enterprise in which the employer and employee are concerned? In the present case the employer is Thiess (Repairs) Pty Ltd. That employer is not engaged in coal-mining, but is an engineering company carrying on general work. It is not under the control of the mine owner, or even of the contacting party (Thiess Bros Pty Ltd), which actually conducts the mining operations. But the more important fact is that its operations are separate from and different in kind from the operations carried on at the open cut. It supplies certain needs of the coal-mining industry in the same way as do many other industrial enterprises. But these facts do not show that all such suppliers of goods or services to that industry are themselves engaged in that industry. In my opinion the evidence in this case shows that Thiess (Repairs) Pty Ltd did not employ Belmar in the coal-mining industry. As already stated, the Central Reference Board can make an order only in relation to certain matters in or in connection with that industry, and therefore the Board had no jurisdiction to make the order for the reinstatement of Belmar.

The reference in the second paragraph to the employee can be understood by reference to the need for there to be a dispute between an employer and an employee. Implicit within Latham CJ's reasons was the need for the characterisation of the company in a substantial way as "in" the industry. 39 Dixon J at 140-141 (in dissent) looked at the question of the separateness (or not) of the activity. 40 The King v Central Reference Board was applied in Re Federated Liquor and Allied Industries Employees' Union of Australia; Ex parte the Australian Workers' Union (1976) 51 ALJR 266 ("Poon's Case") where the Court was assessing whether employees of catering companies which provided services to iron ore mining companies were employed in or in connection with the industry of metalliferous mining. At 268-269, Barwick CJ (with whom Gibbs, Stephen, Mason and Jacobs JJ agreed) said the following in analysing the place of the provider of employees to the relevant industry and the characterisation of that entity and its activity: The business of the respondent companies was quite distinct and separate from that of the mining companies engaged in metalliferous mining. True it is that the respondent companies served the mining companies and provided them with commodities and services the provision of which was desirable if not indeed necessary for the maintenance of the workforce to carry on the mining operations. But that does not mean that in contracting to provide and in providing these commodities and services the respondent companies entered into the business of the mining companies so as themselves to be carrying on metalliferous mining; nor were their employees employed in connexion with that industry. Their businesses remained distinct. Though serving the mining industry, the respondent companies did not carry on metalliferous mining or a business or industry in connexion with metalliferous mining. Although employees of the mining companies who provided food or services of the kind furnished by the respondent companies might have been held to be working in the industry of metalliferous mining, such work done by an independent contractor has a different nature or quality. It cannot be said to be done as an integral part of the metalliferous mining operation. Sir Owen Dixon in R v Central Reference Board; Ex parte Thiess (Repairs) Pty Ltd (1948), 77 CLR 123 at p 141, thought that the separateness of the establishments in point of control, organization, place, interest, personnel and equipment might furnish a relevant discrimen in deciding the question of fact. Sir John Latham in the same case, at p 135, thought that the substantial character of the industrial enterprise in which the employer and employee were concerned was decisive of the question whether the employee was engaged in an industry of given description. Here the substantial character of the industrial enterprise in which the respondent companies are engaged is that of catering and of providing cleaning, etc services. That they should at a particular place perform such work exclusively for mining companies and under contract with them does not require or permit the conclusion that in doing so the respondent companies carry on an activity in or in connexion with metalliferous mining or that their employees are employed in or in connexion with such an industry. 41 In The Queen v Moore; Ex parte Federated Miscellaneous Workers' Union of Australia [1978] HCA 51; 140 CLR 470, a similar issue arose as in Poon's Case in relation to employees of consulting engineers engaged by mining companies to design and supervise the construction of various works. Jacobs J at 477 (with whom Gibbs and Stephen JJ agreed) applied Barwick CJ in Poon's Case. Aickin J (with whom Barwick CJ agreed) quoted the passage in Barwick CJ's judgment in full. See also The Queen v Coldham; Ex parte Australian Workers' Union [1983] HCA 35; 153 CLR 415 at 431-433 (Deane and Dawson JJ). 42 These cases are some support for the proposition that one approach to the question of whether an employer is "in the coal industry" is to assess the substantive character of the industrial enterprise in which the employer is engaged and its connection with the coal industry. 43 A further aspect of context should be mentioned. Coal mines are secure areas. Fences and barriers are required by the Mining Act 1992 (NSW) and the Coal Mine Health and Safety Act 2002 (NSW). Health, safety and management systems are required by the same legislation. Matters regulated by and under these Acts include access to the mine site and duties regarding contractors. This close regulation means that there will be an ability to identify who is working in and about a mine and by whom such a person is employed. Thus, if an entity is an "employer in the coal industry" because it employs a worker in and about a mine (as the appellants submit), the practical reality is that that employer could be readily identified. CMI could then require it to effect a policy with it: Coal Industry Act 2001 (NSW), s 31(1). 44 The appellants submitted that there was a lack of symmetry and an untidiness in operation of the 1987 Act if some workers in and about a mine were employed by employers having CMI as their workers compensation insurer and some were employed by employers having other insurers as their workers compensation insurers. Even if this untidiness exists, there is no lack of relevant insurance protection for the legitimate benefit of coal miners. It will just be a question of who pays the claims. 45 Whilst the above lack of symmetry can be accepted, there is another practical difficulty in construing s 7A(4) as meaning, together with the Coal Industry Act 2001 (NSW), s 31, that an employer of any employee working in and about a mine must insure with CMI. In the case of Central West, it will be required to take up two workers compensation policies: one in respect of its employee who works in a mine (because of the Coal Industry Act 2001 (NSW) s 31(1), and another for workers who do not. 46 To return to the relevant textual enquiry, in respect of s 7A(4), the difference in terminology between s 7A (and the WIM Act, s 9A), on the one hand, and Sch 6 Pt 18, on the other, referred to earlier, is significant. The phrase "employees in the coal industry" carries with it a notion of the employer being in or engaged in the industry. I do not think that that engagement brought about by the word "in" is satisfied by the fact that it employs a person who works in and about a mine and who, I am prepared to accept, can be said to be an employee in the industry. 47 The most powerful textual consideration contrary to this conclusion comes from the Coal Industry Act 2001 (NSW), s 10(1)(m). This describes CMI's responsibilities: establishing and administering a workers compensation insurance scheme "in relation to workers engaged in the coal industry". 48 If this is to be construed as CMI's responsibility to administer a scheme for all such workers, this would tend to equate employers in the coal industry with those who employ any worker in the coal industry. 49 CMI submitted that merely because a person was a worker employed in or about a mine did not mean that he was engaged in the coal industry. I have some doubt about that proposition, but it need not be resolved. I think the Coal Industry Act 2001 (NSW), s 10(1)(m) should be understood in the context of s 31 of that Act and ss 7A and 9A being introduced by that Act into the 1987 Act and the WIM Act. The scheme which satisfies s 10(1)(m) is one for employees of an employer in the coal industry: see s 7A(3). 50 In my view, CMI is correct in its submissions that the phrase "employer in the coal industry" requires a substantive connection between the entity and the coal industry to satisfy the relationship required by the preposition "in", beyond merely being the employer of a person who works in and about a mine. 51 The above conclusion is not to accept the description of the relevant connection used by the primary judge when her Honour followed Bishop J's decision in Badior. There, at [54] Bishop J said that to be an employer in the coal industry the entity must have all or virtually all of its employees working in or about a coal mine pursuant to Schedule 6 Part 18 of the 1987 Act. I do not think that on any view this is an appropriate connection reflective of the word "in". CMI in submissions barely sought to support it. Rather, in its notice of contention CMI submitted that what was required was the satisfaction, from an assessment of the substantial character of the employer and its business, that it was "in" the coal industry. I agree with that approach. It accords with the notion of the employer, as an entity, being in the industry. It also accords with the authorities to which I have referred dealing with similar questions. 52 Ultimately, the question is to be resolved textually and whether or not an entity is an employer in the coal industry will be a question of fact undertaken by reference to an assessment of the company's character and business. Though not the subject of specific submission, the appeal was argued on the basis that though the primary judge did not undertake this particular factual enquiry, the answer to it in the circumstances was clear: that Central West was not an employer in the coal industry. The notice of contention asserted that the facts before her Honour led to this conclusion. If there is any dispute about this question, it will have to be remitted to the District Court to be decided. 53 The above deals with the first issue argued and is sufficient to see the appeal dismissed.

The secondary issue: Is the redemption paid to Mr South recoverable under the policy of CMI 54 The primary judge considered herself bound by the High Court decision in Gosper v Christopherson [1986] HCA 28; 160 CLR 423 to conclude that a payment of a lump sum in redemption as determined by s 15 of the 1987 Act was not compensation under the 1987 Act. It is not necessary to discuss that case in any detail. The appellants accepted that if Gosper applied the conclusion by her Honour was correct. It was frankly conceded by senior counsel for the appellants that the primary judge was given very little assistance in this aspect of the case. The amended notice of appeal complained of lack of reasons. I think that is unfair on the primary judge. The primary judge answered the question posed by the argument before her. Her reasons were entirely adequate given what was put before her. 55 Before this Court, a different argument was propounded. It was said that through the confluence of a number of sections of the relevant legislation that the decision in Gosper no longer, in effect, applied. This was said to be brought about in the following way. The 1987 Act, s 87K provides that a payment of a lump sum to which liability in respect of any weekly payment of compensation has been wholly or partially redeemed under s 15 of the former Act (as applied by Schedule 6 to the 1987 Act) is taken for the purpose of the 1987 Act, the WIM Act and the 1926 Act (as applied by the 1987 Act) to be payment of the compensation concerned in pursuance of the liability to pay the compensation concerned. In other words, lump sums redeemed under s 15 were payments pursuant to a liability under the Act. This reversed the effect of Gosper's case. Of course, redemption under s 15 was abolished by the 1987 Act, except in relation to coal miners as provided for by Schedule 6. Section 87K was said to be made relevant through two provisions, the first being cl 6 of Part 4 of Schedule 6 to the 1987 Act when read together with cl 1(2) of Part 18 of Schedule 6. Relevantly, the former provision was as follows: Cl 6 Redemptions under former Act for existing injuries (1) Section 15 of the former Act continues to apply to a liability in respect of a weekly payment of compensation for a period of incapacity for work resulting from an injury received before the commencement of Division 2 of Part 3 of this Act . … (This part of Sch 6 continued the effect of redemptions after the commencement of the 1987 Act for injuries received before the commencement of the 1987 Act. Standing alone this provision would be of no utility to the appellant's argument, the injury having been received after 1987.)

56 Relevantly, the latter provision was as follows: Cl 1(2) Continuation of weekly compensation payments under former Act. … In the case of a worker employed in or about a mine, the provisions of clause 6 of Part 4 of this Schedule apply as if any liability in respect of weekly payments of compensation resulted from an injury received before the commencement of Division 2 of Part 3 of this Act.

(Thus cl 6 of Part 4 was said to have effect for coal miners as if the injury occurred prior to 1987.) 57 Thus, it was said that Gosper had been reversed and a claim could be made under sub-clause (a) of the relevant insuring clause of the cover which was in the following terms:

The Insurer will indemnify the Employer against all of the following sums for which the Employer becomes liable during or in respect of the period of insurance: (a) compensation that the Employer becomes liable to pay under the Act to or in respect of any person who is a worker of the Employer (including any person to whom the Employer is liable under s 20 of the Act); 58 CMI submitted that the above was not the correct analysis. It was submitted that s 87K did not apply to any coal miner because of the terms of cl 3(1) of Part 18 of Schedule 6 which were in the following terms: Subject to this clause, the 2001 amendments do not apply to or in respect of coal miners and this Act and the 1998 Act [the WIM Act] (and the regulations under those Acts) apply to and in respect of coal miners as if the 2001 amendments had not been enacted. 59 The phrase "the 2001 amendments" was defined in cl 3(4) as meaning the amendments made by the Workers Compensation Legislation Amendment Act 2001 (NSW) and Schedules 1, 2, 3, and 8 to the Workers Compensation Legislation Further Amendment Act 2001 (NSW). Section 87K was introduced into the 1987 Act by the Workers Compensation Legislation Amendment Act 2001 (NSW). So, it was submitted, no part of the 2001 amendments could affect (including give a benefit to) coal miners. 60 Prima facie, this point has force. However, that is not the end of the matter. Schedule 4 item 14 of the Workers Compensation Legislation Amendment Act 1995 (NSW) introduced s 51(9) into the 1987 Act to overcome the effect of Gosper. That provision was in the following terms when introduced: [14] Section 51 Commutation in certain cases of weekly payments Insert after section 51 (8): (9) Payment of a lump sum to which liability in respect of any weekly payment of compensation has been wholly or partially commuted under this section or redeemed under section 15 of the former Act (as applied by Schedule 6 to this Act) is taken for the purposes of sections 15, 16, 22A, 122, 151Z and 273 of this Act and section 64 of the former Act (as so applied) to be payment of the compensation concerned in pursuance of the liability to pay the compensation concerned.

61 The explanatory note to that Act stated: Item (14) of the proposed amendments overcomes one of the effects of the High Court decision in Gosper … whereby an employer was not entitled to recover contributions from previous employers of an injured worker when the employer had paid a lump sum in redemption of the liability to pay compensation. The Court held that lump sum redemption (now referred to as "commutation") did not constitute compensation within the meaning of the Act and so did not give rise to an entitlement to contribution. The proposed amendment provides that amounts paid in commutation (or redemption under the former Act) of compensation entitlements are to be regarded as payments of compensation for the purposes of those provisions of the Act dealing with liabilities to contribute to the payment of compensation, the apportionment of the liability and the recovery of costs by lawyers in respect of compensation awards. 62 The 1987 Act, s 51(9) was amended by Schedule 1 item 31 of the Workers Compensation Legislation Amendment Act 1998 (NSW). After that Act, s 51(9) of the 1987 Act was in the following terms (being the terms relevant at the time of this case): Payment of a lump sum to which liability in respect of any weekly payment of compensation has been wholly or partially commuted under this section or redeemed under s 15 of the former Act (as applied by Schedule 6 to this Act) is taken for the purposes of this Act, the 1998 Act and the former Act (as applied by this Act) to be payment of compensation concerned in pursuance of the liability to pay compensation concerned. 63 Section 51 of the 1987 Act was repealed by the Workers Compensation Legislation Amendment Act 2001 (NSW). However, cl 3 of Part 18 of Schedule 6 of the 1987 Act was in the terms to which I have already referred and had the effect that the 2001 amendments did not apply to or in respect of coal miners and the 1987 Act applies to and in respect of coal miners as if the 2001 amendments had not been enacted. Thus, s 51(9) in the form after the Workers Compensation Legislation Amendment Act 1998 (NSW) relevantly applied. 64 CMI points out however that in 2000 the Workers Compensation Legislation Amendment Act 2000 (NSW), Sch 22.2 item [3] introduced cl 6B of Sch 6 Pt 4 of the 1987 Act. Clause 6B was in the following terms: 6B Amendment to section 51 by 1998 Amending Act - Savings (1) In this clause the section 51 amendment means the amendment made to section 51(9) of this Act by the Workers Compensation Legislation Amendment Act 1998. (2) The section 51 amendment does not affect the established procedure (in accordance with relevant decisions of the courts of competent jurisdiction) with respect to the operation of section 51 of this Act, namely, that the commutation of a liability to pay weekly compensation by the payment of a lump sum determined by the Compensation Court is not a payment of compensation to which a worker is entitled but a payment that the employer may make with the consent of the worker in order to commute that liability. (3) This clause applies whether the liability that is to be commuted arose before or after the commencement of this clause. (4) Section 51 is taken to be amended to the extent (if any) as is necessary for the purposes of giving effect to this clause. 65 An explanatory note accompanied the introduction of this legislation that was in the following terms: Item [3] transfers to the 1987 Act a provision of the regulations under that Act that makes it clear that an amendment to the provision of the Act that provides for the commutation to a lump sum of an employer's liability to pay weekly compensation is not to be construed as altering a long established procedure with respect to the operation of the provision. Under that procedure an employer may pay an amount determined by the Compensation Court to commute or redeem the liability if the worker consents but the worker is not entitled to payment of such a lump sum. 66 CMI submitted that this restated what the High Court had said in Gosper, at least so far as commutations and redemptions were concerned (but not liabilities to contribute to the payment of compensation, the apportionment of liability or the recovery of costs). 67 I do not accept this submission of CMI. Clause 6B of Pt 4 to Sch 6 did not repeal s 51(9), in whole or in part. By s 51(9), payments of redemption moneys or commutation moneys were taken by the 1987 Act to be payments of compensation concerned in pursuance of the liability to pay the compensation concerned. However, for clarity sake, cl 6B stated that this did not affect the established procedure that the commutation sum determined by the Compensation Court was a payment that the employer made with the consent of the worker to commute the liability. Though the interrelationship is somewhat confusing, it is clear that s 51(9) deemed the voluntary payment by way of settlement which was approved by the Compensation Court as compensation under the Act. The purpose of s 51(9) was to overcome Gosper. It did so. Clause 6B did not reinstate Gosper. It merely clarified the practical substance of the procedure - that, it was a consensual settlement. 68 Thus, if I am wrong about the proper construction and interpretation of s 7A, I am of the view that the redemption moneys fell within the insuring clause (a) of CMI's policy. 69 No other relevant point was taken by CMI as to why, in the event that it was wrong under the first issue, it was not liable. 70 No particular point was taken or argued about the jurisprudential foundation of the liability of CMI to the appellants if the appellants were correct. No discussion or argument took place by reference to any restitutionary principles or restitutionary defences. 71 For the above reasons, the appeal should be dismissed with costs. If, contrary to the assumption referred to at [52] above, some factual enquiry is necessary to resolve the controversy as to whether Central West is an employer in the coal industry, the parties should move the Court (within 14 days) to amend these orders to provide for remitter to the District Court for such purpose. 72 GILES JA: I agree with Allsop P. 73 BELL JA: I agree with Allsop P. **********

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