//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[1996] FCA 562
Federal Court of Australia
1994-07-06
Jenkinson J
Original judgment source is linked above.
Appeal from a decision of the Administrative Appeals Tribunal that the respondent is entitled to compensation under the Safety Rehabilitation and Compensation Act 1988. The respondent was found by the Tribunal to have suffered on 10 December 1993 a "frank rupture" of the intervertebral disc between his fourth and fifth lumbar vertebrae ("the L 4/5 disc"), and the Tribunal found that incapacity for work resulted from that rupture and its physiological consequences. Neither finding is disputed by the applicant. The rupture occurred when the applicant was moving a gate on his land, in circumstances which, of themselves, would not entitle the respondent to compensation under the Safety Rehabilitation and Compensation Act 1988 ("the 1988 Act"). The Tribunal further found that an "injury", in the defined sense, suffered by the respondent on 7 July 1984, had resulted in the incapacity which commenced on 10 December 1993. I set out relevant provisions of the 1988 Act. The word "injury" is defined as: "(a)a disease suffered by an employee; or (b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or (c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment; but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment." The word "disease" is defined as: "(a)any ailment suffered by an employee; or (b) the aggravation of any such ailment; being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation." From 1981 the respondent's employment had been by a succession of entities, each of which either was within the meaning of the expression "a licensed corporation" or was under the same liability, imposed by the 1988 Act or earlier, repealed legislation, as the Commonwealth. The word "ailment" is defined as "any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)"; and it is provided that "injury' could be seen as a progression of a degenerative disease then it was to be considered an disease' and a injury' under the 1971 Act". One of the authorities is Commonwealth v. Whillock (1983) 70 F.L.R. 292, a decision of a Full Court of this court, in which Northrop J. dissented. If it had been necessary to resolve the question, I might have been disposed to state a case under s.25(6) of the Federal Court of Australia Act 1976 in order to ascertain whether the dissenting judgment of Northrop J. or the judgment of the majority was correct. It may be difficult to say that Whillock's Case is distinguishable from this case on its facts : cf. Commonwealth v. Hornsby (1960) 103 C.L.R. 588 at 593-594, 595-597, 603-606; Accident Compensation Commission v. McIntosh [1991] 2 V.R. 253 and cases there cited. It was submitted for Comcare that s.7(7) of the 1988 Act had operated to preclude the respondent's claim under the Act in respect of his incapacity for work. That sub-section provides: "A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease." When in May 1981 the respondent applied for employment by TAA he filled in and signed a printed form entitled "Application For Employment". The relevant part of the form was:
aggravation' includes acceleration and recurrence". Section 14(1) provides: "Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment." Sub-section 7(6) provides: "An incapacity for work or impairment of an employee shall be taken, for the purposes of this Act, to have resulted from a disease, or an aggravation of a disease, if, but for that disease or aggravation, as the case may be: (a) an incapacity or impairment would not have occurred; (b) the incapacity would have commenced, or the impairment would have occurred, at a significantly later time; or (c) the extent of the incapacity or impairment would have been significantly less." Sub-section 7(6) was not mentioned by the Tribunal or by counsel for the parties on the hearing of the Tribunal's review or in the Tribunal's reasons for decision, or on the hearing of the appeal until after judgment had been reserved. It will be convenient to defer consideration of the significance of that provision. The Tribunal treated the physiological event which it had found to have occurred on 7 July 1984, and which, it concluded, was an "injury" in the defined sense, as an aggravation of an ailment, namely lumbar disc disease, being an aggravation that was contributed to in a material degree by the respondent's employment. Counsel for the parties did not suggest that the Tribunal erred in that perception of what the evidence disclosed, nor suggest that the physiological event fell within the defined meaning of "injury" as being "a physical ... injury arising out of, or in the course of," the respondent's employment. The event found to have occurred on 7 July 1984 was "a small rupture of the L 4/5 disc or at least a small tear in the casing layer of that disc which eventually wore through and resulted in the frank rupture on 10 December 1993". That prior event was found to be an aggravation of the morbid condition of the respondent's lumbar intervertebral discs to which reference was made as lumbar disc disease. The event occurred when the respondent, in the course of his employment as an aircraft cabin attendant, was lifting a food buffet tray and turning to place it on a trolley. The Tribunal's finding that the event was an aggravation of the disease, which aggravation was contributed to in a material degree by the respondent's employment, was not challenged by counsel for the applicant. Although neither the notice of appeal nor the written outline of the applicant's submissions clearly exposes the contention, Mr. Gunst of counsel founded on the submission that any causal relationship, between the relatively minor derangement of the outer part of the structure of the L 4/5 disc on 7 July 1984 and the "frank rupture" of the structure which occurred on 10 December 1993, which medical opinion evidence had proposed, was as a matter of law broken by reason of the circumstance that the latter rupture was caused by mechanical forces generated in the vicinity of the disc by the respondent's moving of the gate. There had supervened, it was submitted, a novus actus interveniens, and the aggravation of the morbid condition of the disc on 7 July 1984 could not, therefore, be said to have resulted in the incapacity which occurred on and after 10 December 1993. The submission was said to be strengthened by the circumstance that no incapacity for work after July 1984 had resulted from the aggravation suffered on 7 July 1984 during the years between the two incidents. The evidence may not fully support the factual assertion on which that latter argument rests, but there were only a few brief episodes of incapacity during that period. In and after July 1984 the respondent was assigned work "with very much less lifting". Expert evidence by a neurosurgeon attributed to the relatively minor tear in the outer structure of the disc a direct causal relationship with the frank rupture of 10 December 1993. That evidence included an explanation of the sciatic pain in the right leg and testicles which followed the injury of 7 July 1984 as signifying pressure on a nerve by the damaged disc, and the witness characterised the eventual rupture of such a disc on the occurrence of quite minor mechanical stress as a common sequela of such an injury. It was upon that evidence that the Tribunal based its conclusion that the injury of 7 July 1984 had resulted in the incapacity which followed the rupture on 10 December 1993. Counsel for the applicant cited observations supporting the proposition that an intervenient cause of incapacity breaks the chain of causation which the expressions "results in" and "results from" require. Garner v. Burns Philp & Co. Ltd. (1949) 49 S.R.(N.S.W.) 270 at 272-274, per Jordan C.J.; Rosmini v. Chrysler Australia Ltd. 1973) 6 S.A.S.R. 212 at 215, per Bray C.J. and cases cited in the passages relied upon were among the authorities from which support was sought. Considered in the context from which they were taken, those observations do not in my opinion support the submission that error of law in the Tribunal's conclusion was shown. In the course of a judgment approved by the High Court on appeal (47 A.L.J.R. 236) Mason J.A. said in Migge v. Wormald Industries Ltd. [1972] 2 N.S.W.L.R. 29 at 46-47, of a decision of the New South Wales Court of Appeal, : "This decision is of importance because it recognizes that it is not essential to the worker's right to recover that there should be an existing incapacity for work at the time of the second injury and it emphasizes that the question of causation is essentially one of fact. The decision is not decisive of the present case because there, unlike the present case, the initial injury had rendered the worker the more susceptible to an incapacitating injury of the kind which he subsequently suffered and in that sense the initial injury could be said to have contributed to the incapacity which subsequently ensued". The facts of the earlier decision (Pyrmont Publishing Co. Pty. Ltd. (unreported; judgment 14 March 1972) were that an injury sustained in compensable circumstances caused no incapacity until a later injury occurred. The first injury caused in the worker "a weakness of his disc and ligamentous structure", which was found to have contributed "to a subsequent acute transient quadriplegia which occurred when the worker was injured by a rock fall and incapacitated for work". ([1972] 2 N.S.W.L.R. at 46). In its review the Tribunal had evidence to support its conclusion on the question of causation, which was essentially one of fact. I turn to consider sub-section 7(6). The sub-section follows this provision: "(5)The death of an employee shall be taken, for the purposes of this Act, to have resulted from a disease or an aggravation of a disease, if, but for that disease or aggravation, as the case may be, the death of the employee would have occurred at a significantly later time." If sub-section 7(6) is to be understood as an exhaustive statement of the circumstances in which an incapacity for work shall be taken to have resulted from an aggravation of a disease, there is lacking in the material before the Tribunal much evidence relevant to the questions which paragraphs (a), (b) and (c) of the sub-section pose. Nor is there reference to those questions in the Tribunal's reasons for its decision. In one respect at least the operation of the sub-section appears to confer an entitlement to compensation which would not otherwise be conferred by the 1988 Act. If a worker were being treated in hospital for a disease and were attacked there by a deranged person who had wandered into the hospital, incapacity caused by the attack could reasonably be said to be an incapacity which, but for the disease, would not have occurred. In Lindeman Ltd. v. Colvin (1947) 74 C.L.R. 313 a worker who was under treatment in hospital for a compensable head injury suffered a leg fracture while walking in the grounds of the hospital. Dixon J. said (74 C.L.R. at 321): "I do not think that the present case is governed by the reasoning which leads to the inclusion of the consequences of defective, injurious or unsuccessful surgical treatment for the injury among the disabilities resulting from the accident. According to the common course of affairs injuries must be dealt with surgically or medically, and where surgical or medical treatment miscarries, as well as where it succeeds in alleviation, the final condition of the patient is regarded as resulting from the accident. But walking is not medical treatment. It is part of normal life, and the medical opinion that it would be beneficial to resume it cannot make a new accident or injury occurring while walking a consequence of the old accident or injury. It might be a different thing if owing to the original injury the patient remained unfit or unable to walk and the unfitness or inability caused the new injury." Even if a liability to unprovoked attack by a deranged person is taken to be part of normal life, paragraph 7(6)(a) would surely operate to confer on the person attacked an entitlement to compensation. The Compensation (Commonwealth Employees) Bill 1970, which was withdrawn, contained the following provisions: "35.(1.) Where an employee has, whether before or after the commencement of this Act - (a) contracted a disease; or (b) suffered an aggravation, acceleration or recurrence of a disease, and the contraction of the disease, or the aggravation, acceleration or recurrence of the disease, as the case may be, was due to the nature of the employment in which the employee was engaged by the Commonwealth, the succeeding provisions of this section have effect. (2.)If the disease, or the aggravation, acceleration or recurrence - (a) causes the death of the employee; (b) causes to the employee a loss of a kind referred to in section 38 or section 39 of this Act; (c) causes to the employee severe and permanent facial disfigurement; or (d) causes the employee to be totally or partially incapacitated for work, being a death, loss or disfigurement that occurs, or an incapacity that commences, after the commencement of this Act, then, for the purposes of this Act, unless the contrary intention appears, the disease, or the aggravation, acceleration or recurrence, as the case may be, shall be deemed to be a personal injury by accident arising out of the employment of the employee by the Commonwealth and the date of the death, of the loss, of the disfigurement or of the commencement of the incapacity, whichever first occurs, shall be deemed to be the date of the injury. ............................................... (4.)For the purposes of this section, but without limiting the generality of the foregoing provisions of this section - ............................................... (c) the death of an employee shall be taken to have been caused by a disease, or by the aggravation, acceleration or recurrence of a disease, if the disease, or the aggravation, acceleration or recurrence, as the case may be, caused a significant reduction in the length of the life of the employee; and (d) an incapacity for work or facial disfigurement of, or a loss to, an employee shall be taken to have been caused by a disease, or by the aggravation, acceleration or recurrence of a disease, if, but for that disease, or that aggravation, acceleration or recurrence, as the case may be - (i) the incapacity, disfigurement or loss would not have occurred; (ii)the incapacity would have commenced, or the disfigurement or loss would have occurred, at a significantly later time; or (iii) the extent of the incapacity, disfigurement or loss would have been significantly less. In the Explanatory Memorandum concerning the Bill the following statements are made: "Clause 35 retains the existing requirement that, to be compensatable, a disease or the aggravation, etc., of a disease must be due to the nature of the employment in which an employee is engaged by the Commonwealth. However, the clause represents a modification of section 10 of the existing Act in accordance with judicial interpretation of that section (see particularly sub-clause (4))." The "judicial interpretation" to which paragraphs (c) and (d) of sub-clause 35(4) owe their inspiration may be a passage in the judgment of Windeyer J. in McLaughlin & Co. Pty. Ltd. v. Brinnand [1965] W.C.R. 112 at 118: "It is not disputed that there was evidence on which the Workers' Compensation Commission could find that the worker's malignant disease, although not caused by his work, was aggravated by his work. The only question for us is - Was there any evidence that his incapacity resulted from that aggravation? The effect of the Workers' Compensation Act (N.S.W.) since it was amended in 1960 is in my opinion as follows. If, without any aggravation or acceleration contributed to by his employment, a worker would have become incapacitated to the extent he was and when he was by a disease from which he was suffering, then, whether or not there was in fact any aggravation, acceleration or exacerbation of the disease, his incapacity cannot be said to result from aggravation, acceleration or exacerbation. If, on the other hand, a worker's disease is so aggravated by his employment that it causes an incapacity when without such aggravation he would have suffered no incapacity from the disease, then he is entitled to compensation. And if the effect of the aggravation is to cause a greater degree of incapacity than the disease unaggravated would have done - as, for example, if what would otherwise have been a partial or intermittent incapacity becomes a total or permanent incapacity - he is entitled to compensation for the incapacity actually occurring, for it is the result of the aggravation of his pre-existing condition; and it is immaterial that unaggravated he might still have been to some lesser degree incapacitated. If, however, the employment by aggravating his disease or accelerating its progress merely causes an incapacity of the same degree that the disease would in time have caused but causes it earlier, then it seems to me that the resulting compensable incapacity is only that which can be said to be attributable to the aggravation or acceleration: that is to say it is the incapacity from its actual occurrence to the time when, ex hypothesi, the disease, if not accelerated or aggravated, would have produced it. It may be that these considerations are artificial in relation to fundamental ideas of medical science. Their application may present special difficulties in connection with diseases of uncertain aetiology. But it seems to me that the language of the Act forces them upon us." Compare The Darling Island Stevedoring and Lighterage Co. Ltd. v. Hankinson (1967) 117 C.L.R. 19 at 24-28, 31, 32; Commonwealth v. Johnston (1980) 31 A.L.R. 445. The Compensation (Commonwealth Government Employees) Act 1971 ("the 1971 Act") included the following provisions: "29.(1) Where - (a) an employee contracts a disease or suffers an aggravation, acceleration or recurrence of a disease; and (b) any employment of the employee by the Commonwealth was a contributing factor to the contraction of the disease or to the aggravation, acceleration or recurrence, as the case may be, whether or not the disease was contracted or the aggravation, acceleration or recurrence was suffered in the course of that employment, the succeeding provisions of this section have effect. (2) If - (a) the death of the employee; (b) a loss to the employee of a kind referred to in section 39 or 40; (c) facial disfigurement to the employee; (d) a loss to the employee of the sense of taste or smell; or (e) the total or partial incapacity for work of the employee, results from the disease, or from the aggravation, acceleration or recurrence of the disease, or the employee obtained medical treatment in relation to the disease, or the aggravation, acceleration or recurrence of the disease, as the case may be, then, for the purposes of this Act, unless the contrary intention appears - (f) the contraction of the disease, or the aggravation, acceleration or recurrence, as the case may be, shall be deemed to be a personal injury to the employee arising out of the employment of the employee by the Commonwealth; and (g) the date of the death, the date of the loss, the date of the disfigurement, the date of the commencement of the incapacity or the date on which the medical treatment was first obtained, whichever is the earlier, shall be deemed to be the date of the injury. ............................................... 31............................................. (3) The death of an employee shall be taken for the purposes of this Act to have been contributed to by a disease or by an aggravation, acceleration or recurrence of a disease, if, but for that disease, or that aggravation, acceleration or recurrence, as the case may be, the death of the employee would have occurred at a significantly later time. (4) An incapacity for work or facial disfigurement of, or a loss suffered by, an employee shall be taken for the purposes of this Act to have been contributed to by a disease, or by an aggravation, acceleration or recurrence of a disease, if, but for that disease, or that aggravation, acceleration or recurrence, as the case may be - (a) the incapacity, disfigurement or loss would not have occurred; (b) the incapacity would have commenced, or the disfigurement or loss would have occurred, at a significantly later time; or (c) the extent of the incapacity, disfigurement or loss would have been significantly less. (5) This section shall not be construed as limiting by implication the generality of the provisions of section 29." Attention was drawn in the Explanatory Memorandum concerning the Bill for the 1971 Act to sub-section 31(5). Notwithstanding the omission of any such a provision from s.7 of the 1988 Act, I interpret sub-section 7(6) as merely adjunctive to sub-section 14(1), and not as an exhaustive exposition of the meaning of the expression "results in" when used in reference to disease or its aggravation. Not only does the expression "shall be taken, for the purposes of this Act, to have resulted" suggest so much. Each of the sub-sections preceding sub-sections 7(5) and 7(6), other than sub-section 7(4), in all of which that expression is found, is plainly adjunctive to sub-section 14(1) in respect of its application to disease or its aggravation. And the considerations which each of the three paragraphs of sub-section 7(6) raise may, in a large number of cases, be indeed "artificial in relation to fundamental ideas of medical science". How could the witness who expounded the causal relationship between the events of 7 July 1984 and the incapacity which commenced on 10 December 1993 answer by reference to those ideas any of the three questions which those paragraphs pose? How could he tell whether between those two dates the aggravation which in fact occurred on 7 July 1984 would, if the aggravation had not occurred on that date, have occurred thereafter but before 10 December 1993? Or whether, if that aggravation which in fact occurred on 7 July 1984 had not occurred before the gate was moved on 10 December 1993, the incapacity which in fact followed the moving of the gate would not have then occurred, or would have occurred at a later time which could be described as "significantly later"? Or whether, if no such an aggravation had occurred before the moving of the gate, the extent of the incapacity would have been significantly less than the incapacity which in fact followed the moving of the gate? The questions posed by the three paragraphs of sub-section 7(6) may be appropriate in cases of the kind, of which McLaughlin's Case, supra and Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v. Hall (1993) 41 F.C.R. 508 provide examples, where the progression of a morbid physical condition tends to an aggravation or acceleration broadly proportionate to the magnitude of an environmental event or sequence of events (as, for example, physical force, exposure to chemical or biological agents or temperature). A Full Court of this court has indicated that the provisions of s.31(4) of the 1971 Act are likely to raise relevant questions in cases of the aggravation of a mental ailment, disorder, defect or morbid condition : Australian Telecommunications Commission v. Tzikas (1985) 5 A.A.R. 173. Where a morbid condition of gradual development, such as lumber disc disease or more generalised spinal degenerative processes, is subject to aggravation and acceleration by mechanical forces which stress one or more component spinal structures, but where the aggravating or accelerating effect of a particular stress or sequence of stresses encountered in daily living is very difficult to predict, one or more of the questions posed by sub-section 7(6) may not infrequently be unanswerable. So much was generally known when the sub-section was enacted in 1988, and in 1971. And that in my opinion is a further reason for declining to understand the sub-section as an exhaustive exposition of the meaning to be assigned to the expression "results in", with reference to disease and its aggravation. If the construction of sub-section 7(6) which I have adopted be correct, the Tribunal was under no obligation to consider its application to the circumstances under review, when the Tribunal had reached the conclusion that, without reference to its provisions, the required causal relationship between injury and incapacity had been established. If I had concluded that sub-section 7(6) did exhaustively state the circumstances in which an incapacity for work may be taken to have resulted from a disease or its aggravation, a question would have arisen as to whether the "appropriate" order which s.44(4) of the Administrative Appeals Tribunal Act 1975 requires this court to make would have been to set aside the Tribunal's decision and to remit the matter to be heard and determined again. Uninstructed by authority I would be of the opinion that the Tribunal's findings compel the conclusion that the physiological event which occurred on 7 July 1984 - "at least a small tear in the casing layer of "the L 4/5 disc" - was a "a physical .... injury arising .... in the course of" the respondent's employment, within the meaning of those words in paragraph (b) of the definition of "injury". As I have understood the evidence of the neurosurgeon his opinion about the causal relationship between that event and the incapacity on and after 10 December 1993 would be the same, whether the event be characterised as the aggravation of lumbar disc disease or a physical injury. It may, in the circumstances supposed, have been right to dismiss the appeal. I express no concluded opinion, having heard no argument on the point. The Tribunal considered, as it was required by s.124 of the 1988 Act to do, the question whether compensation was payable under the 1971 Act as in force on 7 July 1984, on the footing that both counsel had treated the respondent's claim as in respect of incapacity resulting from the aggravation of a disease. The Tribunal also referred to authorities collected in a decision of the Tribunal (Re Williams and A.O.T.C. (1993) 17 A.A.R. 308) "to the effect that, under the 1971 Act, if an aggravation' of a deemed injury' rather than an "HEALTH
State of health: Good Do you suffer from any disability? No
Have you any disabilities accepted by the Repatriation Dept. as due to war service: Yes/No If so give details
Serious illnesses during last ten years (including hernia) No Give details of previous Workers compensation claims No _____________________________________________________________" The respondent admitted in evidence before the Tribunal that he wrote the handwritten words (which are underlined) in that part of the form. Some of those answers the Tribunal found to have been incorrect, but concluded that the incorrect answer did not attract the operation of sub-section 7(7) because the answer was not made by the respondent without a belief that it was true. Counsel for the applicant characterised the Tribunal's construction of s.7(7) as erroneous in law by reason of the Tribunal's conclusion that the adjective "wilful" required more than the employee's knowledge that he was making the representation and his intention to make the representation. That knowledge and that intention might be thought to amount to no more than the conscious and voluntary nature of an act in the conceptual framework of the criminal law. When it was pointed out to counsel for the applicant that, if no more than that were required, a person suffering from a disease, or who had suffered from a disease, but who was unaware of that circumstance, would be deprived of the benefits provided by the Act if he made a representation of a kind specified in s.7(7), counsel resorted to the criminal law for a qualification of his submission to allow an honest belief based on reasonable grounds to avoid the operation of s.7(7) (See Proudman v. Dayman (1941) 67 C.L.R. 536 at 540-542). It was submitted for the applicant that the construction adopted by the Tribunal treated s.7(7) as if in lieu of the words "wilful and false" the phrase "wilfully false" had been substituted. I see no distinction of meaning between the two. Nor does it appear from the history of the legislation that a distinction was intended by the legislature. In the Commonwealth Employees' Compensation Act 1930-1970, s.10(2) provided: "If the Commissioner is satisfied that the employee, at the time of entering the employment of the Commonwealth, wilfully and falsely represented himself as not having previously suffered from the disease, compensation shall not be payable." When that Act was repealed and the 1971 Act was enacted in its place, s.29(3) provided: "The last preceding sub-section does not apply in relation to a disease, or an aggravation, acceleration or recurrence of a disease, if the employee has at any time, for purposes connected with his employment or proposed employment by the Commonwealth, made a wilful and false representation that he did not suffer, or had not previously suffered, from that disease."
(If the "last preceding sub-section" did not apply, no benefit under the Act was available.) There is nothing in explanatory memoranda or parliamentary debates to suggest that the change from "wilfully false" to "wilful and false" was significant.
Barwick C.J. observed in Iannella v. French (1968) 119 C.L.R. 84 at 94-95:
"It is thus appropriate to consider the meaning and application of the word wilful' in the specification of an offence. The Chief Justice of South Australia, having examined the case law, has repeated the view that the cases show that the word wilful' is not a word of fixed meaning. But of this I cannot myself feel absolutely certain. I am inclined to think that in the description of a criminal offence its connotation is fairly constant: but that its denotation varies with the verbal context and the subject matter of the statutory provision. In my opinion, `wilful' connotes intention and knowledge: the problem is to determine in the particular circumstances what is to be intended and what known. The answer, as I have said, must vary with the nature of the act proscribed and the context of the statutory provision creating the offence. Further, the word intention itself obscures a difficulty. Thus it is said on some occasions to be satisfied by mere volition to do the specific act in question. But in truth, in my opinion, the word contains in its connotation elements of purpose. It is not merely that the mind goes with the act but that the mind intends by the act to achieve something. Of course, in some statutory circumstances, the mere doing without consequence or without purpose is forbidden, in which event the conscious doing of the act may suffice to make its performance intentional and in these circumstances wilful."
That passage, although directed to the interpretation of a criminal statute, is in my opinion apposite in reference to s.7(7). The verbal context supplied by the phrase "false representation" exposes the legislature's attention to the conceptions and language of the common law, which distinguishes clearly between the objective falsity of a representation, signified by the word "false", and the representor's knowledge of the falsity, commonly signified in civil proceedings by the word "fraudulent". (Halsbury (4th ed) vol. 31, paras. 1044, 1059, 1063-1065; The Queen v. Aspinall (1876) 2 Q.B.D. 48 at 56-57). The clause "if the employee has ...... made a ...... false representation" may be expected, therefore, to signify knowledge on the part of the employee that the representation specified was being made by him and an intention on his part that it be made, as well as signifying the objective falsity, the incorrectness, of the representation, but no more. The addition of "wilful" in that verbal context excites the expectation that what the whole clause in the sub-section requires is that, in addition to what the words previously extracted from the clause signify, the employee should have no belief that the representation is true. The subject matter of s.7(7) confirms the conclusion, tentatively reached upon a consideration of the verbal context, that the clause requires that the representation be made without any belief that it is true. There is no reason to suppose, upon a consideration of the whole Act, that the legislature would intend to attach to an innocent misrepresentation about the existence of a disease - a subject notoriously liable to human misapprehension - the dire consequence of exclusion of the representor from the benefits otherwise available under the Act in respect of the disease and its aggravation.
In Commonwealth v. Christoffelsz (1988) 18 F.C.R. 415 and in Owens v. Australian Postal Corporation (F.C.A. VG No. 510 of 1992; unreported, judgment 6 July 1994) the reasons for judgment of Neaves J. and Keely J. respectively assume the correctness of the construction I have given s.7(7), which was not called in question in either case.
The submission that reasonable grounds for a belief, in the correctness of a representation which is objectively incorrect, are required cannot be accepted, in my opinion : see Halsbury, loc. cit.
The appeal will be dismissed with costs.
I certify that this and the 22 preceding pages are a true copy of the Reasons for Judgment of the Honourable Justice Jenkinson.
Counsel for the Applicant : Mr. C. Gunst instructed by Australian Government Solicitor Counsel for the Respondent : Mr. R.W. McGarvie instructed by Maurice Blackburn & Co. Date of Hearing : 28 May, 1996 Date of Judgment : 11 July, 1996