Comcare v Etheridge

Federal Court of Australia (Full Court)|2006-07-01|Before: Spender J, Branson J, Nicholson J, Nicholson JJ

INTRODUCTION 2 These five proceedings were heard together. Four of the proceedings are, or purport to be, appeals on a question of law from a decision of the Administrative Appeals Tribunal ('the Tribunal') instituted pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ('the AAT Act'). The remaining proceeding is an application brought pursuant to s 5 of the Administration Decisions (Judicial Review) Act 1975 (Cth) ('the ADJR Act') and s 39B(1A) of the Judiciary Act 1903 (Cth) ('the Judiciary Act'). The proceedings, which all invoke the original jurisdiction of the Federal Court, were heard by a Full Court pursuant to a direction of the Chief Justice (see s 44(3)(b)(ii) of the AAT Act and s 20(1A) of the Federal Court of Australia Act 1976 (Cth) ('the Federal Court Act')). 3 The hearing was conducted without reference to the application brought pursuant to the ADJR Act and the Judiciary Act. It need not be considered further except to note that the issues raised were substantively identical to those raised in the appeal proceedings. 4 The subject matter of the controversy before the Tribunal concerned liability to pay compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) ('the SRC Act') in respect of the deaths of two men who died of mesothelioma, namely Messrs Hill and Etheridge. It is not in dispute that one of Comcare, Telstra Corporation Ltd ('Telstra') and the Military Rehabilitation & Compensation Commission ('MRCC') is liable to pay compensation under the SRC in respect of the deaths of the two men.

reasons for decision of the tribunal 6 Five decisions in respect of each of Messrs Hill and Etheridge came before the Tribunal for review. Each of Comcare and Telstra had decided that it was not liable to pay compensation to either Mr Hill or Mr Etheridge pursuant to claims made by them respectively in respect of their mesothelioma. Each of Comcare and Telstra similarly decided that it was not liable to pay compensation to the widows respectively of Messrs Hill and Etheridge following the deaths of their husbands from mesothelioma. The MRCC had decided that compensation was not payable by it under the SRC Act in respect of the mesothelioma suffered by Messrs Hill and Etheridge. 7 Comcare and the MRCC were represented before the Tribunal, as they were in this Court, by the same counsel. Telstra was separately represented. Many facts were agreed for the purpose of the Tribunal hearing, including facts concerning the employment history of Messrs Hill and Etheridge. Expert evidence was called concerning their respective exposure to asbestos and the nature and cause of mesothelioma. 8 The Tribunal considered it to be common ground that compensation was payable under the SRC Act in respect of the conditions of mesothelioma which resulted in the deaths of Messrs Hill and Etheridge. It identified the ultimate question for its determination as 'which of the respondents - Comcare/MRCC or Telstra - is liable to pay such compensation …?' The way in which the Tribunal expressed this question reveals that it did not consider it necessary for it to determine, should it find that Telstra was not liable to pay such compensation, which of Comcare and MRCC was liable to pay the compensation. Although the Tribunal's view in this regard has been challenged before this Court, it seems to be an unsurprising approach for it to have adopted having regard to the common representation of Comcare and MRCC. Their respective interests cannot have been seen by them to have been in conflict. 9 The Tribunal made the following findings of fact: (a) the inhalation of asbestos fibre does not constitute an 'injury simpliciter'; (b) neither Mr Hill nor Mr Etheridge suffered 'impairment' as defined by s 4(1) of the SRC Act prior to 1 December 1988; (c) for the purposes of s 7 of the SRC Act: (i) each of Messrs Hill and Etheridge was an 'employee'; (ii) each of Messrs Hill and Etheridge died from a 'disease', namely mesothelioma, which had been caused by exposure to asbestos; (iii) Mr Hill had been exposed to asbestos when employed by the Royal Australian Navy ('RAN') (1943‑1946), the Postmaster-General's Department ('PMG') (1948‑1955 and 1962‑1975) and the Australian Telecommunications Commission ('ATC') (1975‑1976); (iv) Mr Etheridge had been exposed to asbestos when employed by the PMG (1939 and 1945‑1975), the Australian Army (1939‑1945) and the ATC (1975); (v) Mr Hill first experienced, and sought medical treatment for, symptoms of mesothelioma in or about October 1999; and (vi) Mr Etheridge first experienced, and sought treatment for, symptoms of mesothelioma in or about August 1999. (d) the employment of Messrs Hill and Etheridge with the Defence Force and with the PMG contributed in a material degree to the contraction by them respectively of mesothelioma; and (e) the employment of Messrs Hill and Etheridge by the ATC did not contribute in a material degree to the contraction by them respectively of mesothelioma. 10 On the basis of the above findings the Tribunal concluded that: '… Comcare/MRCC is liable under s 14(1) of the SRC Act, to pay compensation to the applicants in accordance with that Act in respect of an "injury" (as defined in s 4(1)), being a "disease" (as defined in s 4(1)), namely mesothelioma, which resulted in the deaths of Mr Hill and Mr Etheridge.'

the nature of an appeal pursuant to s 44(1) of the AAT Act 11 Section 44(1) of the AAT Act provides: 'A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.' 12 Order 53 of the Federal Court Rules regulates the practice and procedure to be followed in respect of appeals from the Tribunal. Order 53 subrules 3(2), (3) and (4) provide: '(2) The notice of appeal shall be signed by the applicant or his solicitor and shall state - (a) the decision of the Tribunal from which the appeal is brought, the members constituting the Tribunal and the date when the decision was made; (b) the question or questions of law to be raised on the appeal; (c) the order sought, and (d) briefly, but specifically, the grounds relied upon in support of the order sought. (3) The Court may on such terms and conditions as the Court thinks fit, allow a notice of appeal to be amended. (4) On the hearing of an appeal, the applicant shall not, without the leave of the Court, raise any question of law or rely on any ground in support of the order sought other than those stated in the notice of appeal.' 13 The nature of an appeal under s 44(1) of the AAT Act was considered in Birdseye v Australian Securities and Investment Commission [2003] FCAFC 232; 76 ALD 321 ('Birdseye') by Stone J and me particularly at [10]‑[18]. We expressed our approval of the observation made by Gummow J in TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178 that an appeal 'on a question of law' is narrower than an appeal that merely involves a question of law. As his Honour pointed out, where an appeal lies 'on a question of law' the subject matter of the appeal is the question or questions of law. That is, the subject matter of the appeal is the question or questions of law stated as required by O 53 r 3(2)(b). 14 The legislature, by creating a statutory right of appeal to a party to a proceeding before the Tribunal in the narrow terms of s 44(1), disclosed an intention to limit the capacity of the Court on an appeal under s 44(1) to review factual findings of the Tribunal. An appeal pursuant to s 44(1) is thus quite different from an appeal from a judicial body under s 24 of the Federal Court Act. An appeal under s 24 is an appeal by way of rehearing (see Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd (2005) 220 ALR 211 at [35]‑[47]). The subject matter of an appeal under s 44(1) of the AAT Act is (shorn of the requirement to determine what, if any, entitlement to relief flows from the answer to the question or questions of law) of the same character as the subject matter of a reference of a question of law to the Court made under s 45 of the AAT Act. 15 In Birdseye Stone J and I also expressed approval of the observation of Ryan J in Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 527 that: 'If the question, properly analysed, is not a question of law no amount of formulary like "erred in law" or "was open as a matter of law" can make it into a question of law.' 16 A mixed question of fact and law is not a question of law within the meaning of s 44(1) of the AAT Act. Stone J and I observed in Birdseye at [18]: 'In our view, O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the Tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal.' 17 Although recent amendments to s 44 of the AAT Act have given the Federal Court limited powers to make findings of fact (see s 44(7)‑(10)), this is a power available to be exercised after the Court has given consideration to the questions of law which constitute the subject matter of the appeal. If the answers to those questions, or any of them, lead to relief being granted to the applicant, the limited power to find facts which is vested in the Court by s 44(7) may be exercised, where it is convenient to do so having regard to the factors identified in the subsection, to avoid the need for the matter to be remitted to the Tribunal for further consideration.

the notices of appeal 18 The first of the questions of law purportedly identified in each of the four appeals incorporated various separate sub‑questions. The form of the question was identical in each appeal. The opening lines of the first question in the notice of appeal filed in WAD 123 of 2005 is illustrative of their nature: 'the construction and operation of: a) s 9(1) of the Commonwealth Employees' Compensation Act 1930 …; b) ss 27(1) and 104 of the Compensation (Commonwealth Government Employees) Act 1971…; c) …' 19 A broad enquiry as to the construction and operation of statutory provisions is not a question of law within the meaning of s 44(1) of the AAT Act. Moreover, by inviting the Court to engage in such a broad and hypothetical inquiry the purported question of law extends beyond any controversy between the parties. It is for this reason incapable of constituting a 'matter' and thus beyond the competence of the Court which has jurisdiction only in respect of matters (ss 75‑77 of the Constitution). 20 The second of the questions of law purportedly identified by the four notices of appeal invites consideration of whether, in effect, the inhalation or ingestion of an asbestos fibre is to be characterised as a matter of law as an injury (other than a disease) within the definition of 'injury' contained in s 4(1) of the SRC Act. That definition is relevantly in the following terms: '(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; …' 21 Comcare and MRCC contend that there was authority binding on the Tribunal that compelled it to find that the inhalation or ingestion of an asbestos fibre was an injury (other than a disease) within the above definition. This contention seems to me to involve the error of approach identified by the House of Lords in Qualcast (Wolverhampton) Ltd v Haynes [1959] AC 743. In that case a county court judge had considered that he was bound by authority to decide that an employer who did not urge a foundry worker to wear protective spats was negligent. The judge placed reliance on three cases in which an employer who did not urge a foundry worker to wear protective spats had been found to have been negligent. Each of their Lordships expressed the view that the county court judge wrongly treated the factual findings of the three cases upon which he relied as requiring him to reach the same finding on the facts before him. Lord Denning dealt with this issue at greatest length. His Lordship at 760‑761 observed: 'What is "a proper system of work" is a matter for evidence, not for law books. It changes as the conditions of work change. The standard goes up as men become wiser. It does not stand still as the law sometimes does. I can well see how it came about that the county court judge made this mistake. He was presented with a number of cases in which judges of the High Court had given reasons for coming to their conclusions of fact. And those reasons seemed to him to be so expressed as to be rulings in point of law: whereas they were in truth nothing more than propositions of good sense.' 22 After referring to a number of authorities in which general propositions had been held not to constitute propositions of law, his Lordship went on: 'Such cases all serve to bear out the warning which has been given in this House before. "… we ought to beware of allowing tests or guides which have been suggested by the court in one set of circumstances, or in one class of cases, to be applied to other surroundings," and thus by degrees to turn what is at bottom a question of fact into a proposition of law.' 23 Gleeson CJ and Kirby J offered essentially the same warning in the context of a statutory cause of action in Kennedy Cleaning Services Pty Limited v Petkoska (2000) 200 CLR 286 when their Honours observed at [22]: 'it is essential to measure any particular claim against the precise language of the applicable legislation … The duty of the decision-maker is to apply the language of the relevant legislation to the facts as found in the particular case.' 24 See also the observations of Windeyer J in Teubner v Humble (1963) 108 CLR 491 at 503 and Murphy J in Ogle v Comboyuro Investments Pty Ltd (1976) 136 CLR 444 at 463‑464. 25 As the above authorities demonstrate, the question of whether a particular employee suffered an injury (other than a disease) within the meaning of s 4(1) of the SRC Act cannot be determined merely by reference to the terms of that Act and previously decided cases. On any claim made under the SRC Act in which the issue of whether the relevant employee suffered an injury (other than a disease) within the meaning of the Act is contested, determination of that issue will depend in part upon the proper construction of the definition of 'injury' contained in s 4(1) and in part upon the evidence or admissions relied upon in support of the claim. In the absence of relevant admissions, the necessary evidence will have two aspects; first, evidence that the employee suffered something, and secondly, evidence that the something which he or she suffered was an 'injury' within the meaning of the definition. 26 It is not suggested that the word 'injury' is used in s 4(1) in other than its ordinary or common meaning. Consequently, and notwithstanding the potential relevance of expert evidence (for example, expert evidence reflecting current medical opinion as to the aetiology of mesothelioma), the question of whether facts as found fall within the meaning of the word 'injury' as defined is a question of fact rather than a question of law (Hope v Bathurst City Council (1980) 144 CLR 1 esp per Mason J at 7). 27 This is not to say that a finding by the Tribunal that a particular condition of the body is or is not to be characterised as an injury (other than a disease) within the relevant definition is not subject to judicial review. If the Tribunal reaches its finding by, for example, taking into account irrelevant information, by failing to take into account a relevant consideration or because it misapprehends what the term 'injury' connotes in the SRC Act, its decision will be amenable to an order of review under s 5 of the ADJR Act. 28 It is not useful to examine separately each of the other purported questions of law stated in the four notices of appeal. The following question, which is taken from the notice of appeal filed in WAD 123 of 2005, is illustrative of their nature: 'whether the evidence and other material before the Tribunal was such that the Tribunal could only find that, upon inhaling or ingesting an asbestos fibre or fibres in the course of his employment by the Commonwealth, Mr Ethridge suffered at the time of that inhalation or ingestion: a) an injury simpliciter; b) "personal injury by accident arising out of or in the course of his employment by the Commonwealth" within s 9(1) of the 1930 Act; c) "personal injury arising out of or in the course of [his] employment … by the Commonwealth" within s 27(1) of the 1971 Act; d) "an injury (other than a disease)" within paragraph (b) of the definition of "injury" in s 4(1) of the SRC Act …' 29 The invitation, which is inherent in the above question, to examine the evidence and other material before the Tribunal is sufficient to show that it is not 'a question of law' within the meaning of s 44(1) of the AAT Act (see Birdseye at [18]). It is at best a mixed question of law and fact. Looked at more critically, it is open to be understood as an invitation to the Court to conduct a rehearing with respect to important aspects of the controversy that came before the Tribunal for determination. This is not an invitation that the Court may accept on an appeal under s 44(1) of the AAT Act. 30 The restricted nature of the right of appeal given to a party to a proceeding before the Tribunal by s 44(1) of the AAT Act does not mean that decisions of the Tribunal made under the SRC Act are otherwise beyond review. As mentioned above, an application may be made, as indeed it was in this case, for judicial review of any decision of the Tribunal on any one or more of the grounds identified in s 5(1) of the ADJR Act. 31 Fortunately, notwithstanding the form of the notices of appeal before this Court, certain questions of law which are appropriate to form the subject matter of an appeal pursuant to s 44(1) of the AAT can be understood to be raised by them. The parties were heard on those questions and it is appropriate that they be answered. The questions are identified below.

Question 1 Whether the mere experiencing of an event or condition necessary for the development of a disease contracted by gradual process (as for example, the inhalation of asbestos fibres in respect of the disease of mesothelioma) is capable of constituting an 'injury' within the meaning of the 1930 Act or the 1971 Act? 32 This question can be understood to be raised by these appeals because the submissions of Comcare challenged the conclusion of the Tribunal that neither Mr Hill nor Mr Etheridge had suffered an 'injury' before 1988 when the CERC Act came into operation. The case of Comcare before the Tribunal was that each of Messrs Hill and Etheridge had suffered an 'injury' under one or both of the 1930 Act and the 1971 Act at the time that he inhaled asbestos fibres and that consequently liability had arisen in the Commonwealth at that time to pay compensation in respect of that 'injury'. On the findings of the Tribunal, the earliest dates upon which Messrs Hill and Etheridge respectively could relevantly have inhaled asbestos fibres was 1943 in the case of Mr Hill and 1939 in the case of Mr Etheridge. It was argued by Comcare that, upon the coming into operation of the CERC Act on 1 December 1988, s 128 of that Act (see [61] below) effected the transfer of the liability of the Commonwealth in respect of the injuries of Messrs Hill and Etheridge to Comcare's predecessor, the Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees ('the Commission') (see Industrial Relations Legislation Amendment Act (No. 3) 1991 (Cth)). Section 101(2)(a) of the CERC Act, it was argued, in turn vested that liability to pay compensation in Telstra's predecessor, the ATC, upon its becoming an administering authority on 1 December 1988. 33 The 1930 Act as originally enacted did not contain a definition of 'injury'. It provided by s 9(1) that the Commonwealth was liable, subject to the Act, to pay compensation in accordance with the First Schedule of the Act, if personal injury by accident arising out of and in the course of employment was caused to an employee of the Commonwealth. The word 'injury' must be understood in this context to carry its ordinary or common meaning. 34 Act No 61 of 1948, which commenced on 3 January 1949, amongst other things, inserted into the 1930 Act the following definition: '"injury" means any physical or mental injury and includes an aggravation, acceleration or recurrence of a pre‑existing injury.' 35 The above definition discloses an intention to put beyond doubt that a mental injury, and also an aggravation, acceleration or recurrence of a pre‑existing injury, is an 'injury' for the purposes of the Act. However, these kinds of injury aside, the definition does not seek to give the word 'injury' a meaning other than that which it bears in common use. In common use, as the Macquarie Dictionary reflects, an injury is a harm sustained. In the context of workers' compensation legislation an injury has long been understood in Australia to be a sudden or identifiable physiological change including a change internal to the body (see Kennedy Cleaning Services Pty Limited v Petkoska per Gleeson CJ and Kirby J at [35]‑[36]). 36 Act No 61 of 1948 also inserted a new s 9 into the 1930 Act. On and after 3 January 1949, the liability of the Commonwealth under s 9(1) was extended from that originally created by the 1930 Act to a liability in respect of personal injuries by accident arising out of or in the course of employment with the Commonwealth. The amount of compensation payable remained fixed by the First Schedule of the 1930 Act as amended from time to time. The schedule at all times provided for compensation to be payable only where the injury resulted in the death of the employee or the employee becoming totally or partially incapacitated for work. 37 Section 10 of the 1930 Act contained a separate liability provision in respect of an employee who suffered from a disease and was thereby incapacitated for work or who died from the disease, where that disease was caused by the employee's employment by the Commonwealth. As originally enacted, the 1930 Act provided that compensation was only payable in respect of a disease mentioned in the Second Schedule to the Act. Neither mesothelioma nor any disease related to asbestos exposure was mentioned in the Second Schedule. 38 Act No 61 of 1948 amended s 10(1) of the 1930 Act so as to provide from 3 January 1949 that, if an employee was suffering from a disease and was thereby incapacitated for work, or if the death of an employee was caused by a disease, and the disease was due to the nature of the employment in which the employee was engaged, the Commonwealth was liable to pay compensation in accordance with the Act as if the disease were a personal injury by accident arising out of or in the course of his or her employment. The intention of the legislature to equate a disease due to the nature of an employee's employment with a personal injury by accident, but nonetheless to maintain the distinction between them, was confirmed by s 4(2)) of the 1930 Act which was also inserted by Act No 61 of 1948. Section 4(2) provided, in effect, for the provisions of the Act in relation to personal injury by accident, in their application to an employee to whom s 10 of the Act applied, to be read as including a reference to a disease due to the nature of the employee's employment. 39 At all relevant times, the 1930 Act made special provision in respect of a disease contracted by gradual process. It vested in the Commonwealth an entitlement to be indemnified by any other employer liable to pay compensation who employed the employee prior to the incapacity in the employment to which the disease is due (s 10(4)). 40 It is not necessary for present purposes to give consideration to whether a sudden or identifiable physiological change connected with an underlying disease process would have, or could have, constituted an 'injury' within the meaning of the 1930 Act. The scheme of the 1930 Act (both before and after 3 January 1949) makes plain, in my view, that the mere experiencing of a condition necessary for the contraction by gradual process of a disease was not, without more, capable of constituting an 'injury' within the meaning of the 1930 Act. The principal reasons why this is so are as follows. 41 First, the expression 'personal injury by accident' is not apt in its ordinary meaning to encompass the mere experiencing of an event or condition necessary for the development of a gradually contracted disease. The expression 'personal injury by accident' connotes an unintended experience of harmful physiological change. The mere experiencing of an event or condition necessary for the development of a disease contracted by gradual process may not result in physiological change. Whether in any particular case the mere inhalation of asbestos fibres, for example, resulted in the experience of physiological change is a question of fact to be determined by reference to, amongst other evidence, relevant expert evidence. 42 Secondly, s 9 of the 1930 Act did not at any time provide that the Commonwealth was liable to pay compensation in accordance with the First Schedule; it provided that the Commonwealth was, subject to the Act, liable to pay compensation in accordance with the First Schedule. The First Schedule only provided for compensation to be paid in cases of death or total or partial incapacity for work. Further, the special provisions of the Act concerning a disease contracted by gradual process, and particularly the indemnity provision contained in s 10(4) (see [39] above), render it unlikely that the legislature intended that the mere experiencing of an event or condition necessary for the development of a disease contracted by gradual process could constitute 'personal injury by accident' within the meaning of that Act. 43 The definition of 'injury' in s 5(1) of the 1971 Act was as follows: '"injury" means any physical or mental injury and includes the aggravation, acceleration or recurrence of any physical or mental injury but, subject to section 29 of this Act, does not include a disease or the aggravation, acceleration or recurrence of the disease.' 44 Section 29(1) of the 1971 Act provided for succeeding subsections of that section to have effect where an employee contracted a disease, or suffered an aggravation, acceleration or recurrence of a disease, and employment by the Commonwealth was a contributing factor to the contraction, aggravation, acceleration or recurrence of the disease. Section 29(2) provided that if the disease, or the aggravation, acceleration or recurrence of the disease, resulted in the death of the employee or, relevantly, in the total or partial incapacity for work of the employee, the disease, or its aggravation, acceleration or recurrence was to be deemed to be a personal injury to the employee arising out of the employment of the employee by the Commonwealth. 45 Similarly, in my view, the scheme of the 1971 Act makes plain that the mere experiencing of an event or condition necessary for the development of a disease contracted by gradual process did not fall within the definition of 'injury' contained in that Act. The 1971 Act contained provisions that dealt separately with claims for compensation as a result of injury and claims for compensation as a result of the contraction of disease. Those provisions included provisions which facilitated proof, in the case of certain diseases, that the employment in which the employee was engaged by the Commonwealth contributed to the contraction of the disease. The legislative intent behind these provisions would be largely rendered unnecessary if the mere experience of a condition necessary for the contraction by gradual process of a disease were itself to be regarded as an 'injury' within the meaning of that Act. 46 The authorities upon which Comcare placed reliance do not suggest that above conclusions concerning the proper interpretation of the 1930 Act and the 1971 Act are not open and appropriate. As mentioned above, generalities are dangerous where the relevant question is one of statutory construction. 47 The first of the authorities upon which Comcare relied was the decision of the High Court in Favelle Mort Limited v Murray (1976) 133 CLR 580. In that case, the High Court was concerned with legislation in significantly different terms from either the 1930 Act or the 1971 Act. The legislation there considered was the Workers' Compensation Act 1926 (NSW). The definition of 'injury' in that Act was in markedly different terms from the definition of 'injury' in either the 1930 Act (as amended by Act No 61 of 1948) or the 1971 Act. In particular, the definition of 'injury' in the NSW Act included a disease contracted by the worker in the course of his employment and to which the employment was a contributing factor. 48 Comcare drew particular attention to certain opinions expressed in Favelle Mort v Murray. Barwick CJ at 587 and 588 expressed the opinions that 'in its normal meaning the word "injury" in the Act itself embraces an externally excited disease' and 'the external cause initiating a morbid condition of the body is itself an injury within the ordinary sense of that word'. Jacobs J at 600 expressed the view that the entry of a virus into the human body is an injury because '[b]y the infection of more and more body cells the injury leads to what may be described as a disease'. It is important, in my view, to recognise that the above opinions were expressed in the context of a dispute concerning viral meningo‑encephalitis. Their Honours were not concerned with a disease, like mesothelioma, which is contracted by gradual process with the consequence that the precise incident whereby it was 'externally excited' cannot be identified. 49 Nor does the decision of the Supreme Court of Western Australia in GRE Insurance Ltd v Bristile Ltd (1991) 5 WAR 440 provide guidance on the proper interpretation of either the 1930 Act or the 1971 Act. The Supreme Court was concerned with the proper interpretation of an employer's policy of insurance. It invoked accepted rules of construction for a commercial contract, including the contra proferentem rule, rather than the rules of statutory construction. 50 Another authority upon which Comcare placed reliance was Fisher v Hebburn Limited (1960) 105 CLR 188. This is a case in which the High Court gave consideration to the proper construction of the Workers' Compensation Act 1926 (NSW). For this reason this authority, like Favelle Mort Limited v Murray, is of limited value in determining the answer to Question 1. However, it is of interest to observe that in Fisher v Hebburn Limited at 203 Kitto and Menzies JJ observed that: 'There is, then, in a case of a gradually contracted disease, no accrued right, and no accrued liability, until incapacity (or death) results.' 51 Comcare also drew attention to comments by Mason J in Connair Pty Ltd v Frederiksen (1979) 142 CLR 485, a case which involved the interpretation of legislation in similar terms to the 1930 Act. Mason J at 503 observed that 'an infection due to the entry into the body of bacteria or a virus is an injury, though it also answers the statutory description of "disease"'. Counsel for Comcare accepted that Mason J's observation was not necessary to decide the case and was not addressed by any other member of the Court. Additionally, his Honour was not concerned with a disease like mesothelioma (see [48] above). Moreover, Mason J's observation was itself prefaced by comments on the importance of the statutory context. 52 Question 1 should be answered: No.

Question 2 Whether s 101(2)(a) of the CERC Act had an operation in respect of inchoate or contingent liabilitiesof the Commission in respect of a disease contracted by gradual process suffered by an employee? 53 This question can be understood to be raised by these appeals because the alternative submission of Comcare involved the contention that the inchoate or contingent liability of the Commission to pay compensation to Messrs Hill and Etheridge (taken, on Comcare's argument, to have passed from the Commonwealth to the Commission upon the commencement of the CERC Act) vested in the ATC on the day that the ATC was declared to be an administering authority and was thereafter assumed by Telstra. 54 Section 101 of the CERC Act was found in Part VIII of that Act which concerned administering authorities. Subsection (1) authorised the Minister, by notice in writing, to declare a Commonwealth authority to be an administering authority. Subsection (2)(a) relevantly provided as follows: '(2) Where the Minister declares a Commonwealth authority to be an administering authority: (a) any liability of the Commission to pay compensation … in respect of an injury, loss or damage suffered by an employee of the authority, or in respect of the death of such an employee, being a liability that had not been discharged before the date on which the declaration takes effect, shall by force of this subsection, vest in the authority on that day ...' 55 Comcare submitted that the policy underlying s 101(2)(a) of the CERC Act was to transfer to an administering authority outstanding liability for workers' compensation in respect of its employees. Comcare contended: (a) 'It is implausible that the Parliament would have intended to distinguish between cases where a disease was contracted before the declaration of the administering authority (as a result of work related exposure) and cases where the contraction of the disease was delayed until after that declaration'; and (b) 'It would be surprising from a policy perspective (particularly when one has regard to the need for orderly administration) if the Parliament intended to exclude from the suite of transferred liabilities those cases in which the employment contribution pre‑dated the declaration but 'injury' did not occur until after the declaration.' 56 Section 4 of the CERC Act contained the following definition of 'injury': '"injury" means: (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 (or the aggravation of such an injury) arising out of, or in the course of, the employee's employment.' 57 The same section defines 'disease' to mean an ailment, or the aggravation of an ailment, that was contributed to in a material degree by the employee's employment by the Commonwealth. 58 It seems to me that the above definition of 'injury', by drawing a distinction between a disease and an injury (other than a disease), suggests against any legislative intention to treat an incident that gave rise to a condition necessary for the development of a disease contracted by gradual process (eg the inhalation of asbestos fibres) as an injury independent of the resulting disease itself (eg mesothelioma). See also the terms of s 7(4) of the CERC Act set out below. 59 It does not seem to me to be implausible that the legislature would have intended to distinguish between cases where a disease was contracted before the declaration of the administering authority and cases where the contraction of the disease was delayed until after that declaration. Section 7 of the CERC Act contained detailed provisions relating to diseases. Such provisions include the following: '(1) Where: (a) an employee has suffered, or is suffering, from a disease or the death of an employee results from a disease; (b) the disease is of a kind specified by the Minister by notice in writing as a disease related to employment of a kind specified in the notice; and (c) the employee was, at any time before symptoms of the disease first became apparent, engaged by the Commonwealth in employment of that kind; the employment in which the employee was so engaged shall, for the purposes of this Act, be taken to have contributed in a material degree to the contraction of the disease, unless the contrary is established. (2) Where an employee contracts a disease, any employment in which he or she was engaged by the Commonwealth at any time before symptoms of the disease first became apparent shall, unless the contrary is established, be taken, for the purposes of this Act, to have contributed in a material degree to the contraction of the disease if the incidence of that disease among persons who have engaged in such employment is significantly greater than the incidence of the disease among persons who have engaged in other employment in the place where the employee is ordinarily employed. (3) Where an employee suffers an aggravation of a disease, any employment in which he or she was engaged by the Commonwealth at any time before symptoms of the aggravation first became apparent shall, unless the contrary is established, be taken, for the purposes of this Act, to have contributed in a material degree to the aggravation if the incidence of the aggravation of that disease among persons suffering from it who have engaged in such employment is significantly greater than the incidence of the aggravation of that disease among persons suffering from it who have engaged in other employment in the place where the employee was ordinarily employed. (4) For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when: (a) the employee first sought medical treatment for the disease, or aggravation; or (b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee; whichever happens first.' (emphasis added) 60 It seems to me that the construction of s 101(2)(a) for which Comcare contends leads to consequences unlikely to have been intended by the legislature. For example, reference to s 7(4) reveals that, on the construction of s 101(2)(a) for which Comcare contends, a liability could be vested in an administering authority on the day of its declarationas an administering authority notwithstanding that the injury from which the liability arose had not yet been sustained. It seems to me to be unlikely that the legislature would have intended this somewhat surprising outcome. 61 Guidance as to the proper construction of s 101(2)(a) of the CERC Act may, in my view, be found in s 128 of that Act. Section 128 is a transitional provision which provides as follows: 'Any liability of the Commonwealth, or of a Commonwealth authority, to pay compensation or make any other payment to a person under any provision of the 1912 Act, the 1930 Act or the 1971 Act shall, to the extent that it had not been discharged before the commencing day, be taken to have been incurred by the relevant authority on that day under the corresponding provision of this Act.'

The reference in s 128 to the 1912 Act can be ignored for present purposes (see [32] above).

62 The similarity between the language of s 101(2)(a) and s 128 suggests that s 101(2)(a) was itself intended to be a transitional provision with a comparable operation to that of s 128. Section 128 made provision for the non‑discharged liabilities of the Commonwealth and Commonwealth authorities under earlier compensation legislation to pass, on the commencement of the CERC Act, to the relevant authority under that Act (ie the Commission or an administering authority). Section 101(2)(a) should, in my view, be understood to make comparable provision for the non‑discharged liabilities of the Commission to pass, on the date of its declaration as an administering authority, to the relevant administering authority. 63 It is therefore necessary to give consideration to the intended meaning of the phrase '[a]ny liability of the Commonwealth, or a Commonwealth authority, to pay compensation' in s 128 of the CERC Act. Section 128 is one of a number of transitional provisions contained in Part X of the CERC Act as originally enacted. Other provisions then in Part X included, importantly, s 124 which as originally enacted relevantly provided: '(1) Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day. (2) A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage: (a) where the injury, loss or damage was suffered before the commencement of the 1930 Act - under the 1912 Act; (b) where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act - under the 1930 Act as in force when the injury, loss or damage was suffered; or (c) in any other case - under the 1971 Act as in force when the injury, loss or damage was suffered.' 64 Other provisions in Part X of the CERC Act as originally enacted (ie s 125 and s 126) provided for payments made under the 1930 Act and the 1971 Act to be deemed to have been made by the relevant authority in respect of the corresponding liability under the CERC Act and for notices served and claims duly made under those Acts to be taken to be duly served or made under the CERC Act. 65 When the language of s 128 is considered in the context of Part X of the CERC Act as a whole, it is, in my view, plain that s 128 was concerned with actual, but not fully discharged, liabilities of the Commonwealth, or of a Commonwealth authority, to pay compensation under the earlier Acts. Section 101(2)(a) is, in my view, to be understood to have a comparable ambit. 66 It is not necessary for s 101(2)(a) to be read in the way for which Comcare contends to provide protection to employees whose entitlements to compensation because of the contraction of a disease became on 1 December 1988 governed by the CERC Act. As mentioned above, s 7 of the CERC Act contained comprehensive provisions concerning diseases, including s 7(4) which provided, in effect, that an employee who contracted a disease was to be taken to have sustained an injury on the day when he or she first sought medical treatment for the disease or the disease caused his or her death or incapacity for work. 67 Further, as the parties acknowledged before the Tribunal, the CERC Act authorised claims to be made by a person who, at the time of the claim, had ceased to be an employee of the Commonwealth or a Commonwealth authority (see s 5(9) of the CERC Act). 68 Question 2 should be answered: No.

Question 3 Whether the SRC Act applies in relation to service of a member of the Defence Force in respect of which provision for the payment of pension is made by the Veterans' Entitlements Act 1986 (Cth) ('Veterans' Entitlements Act')? 69 This question can be understood to be raised by these appeals as the MRCC contended that it could not be liable under the SRC Act to pay compensation in respect of the deaths of Messrs Hill and Etheridge because s 13 of the Veterans' Entitlements Act provided for the payment of pensions in respect of their relevant service with the Defence Force. 70 Section 4 of the SRC Act provides that, unless a contrary intention appears, the word 'employee' in the Act has the meaning given in s 5 and also applies to persons 65 years of age or older. Section 5(1) provides, amongst other things, that a person who is employed by the Commonwealth is an 'employee'. Section 5(2)(b) provides that a member of the Defence Force shall, for the purposes of that Act, be taken to be employed by the Commonwealth. The effect of s 5 of the SRC Act is therefore that, unless the contrary intention appears, a member of the Defence Force is an employee within the meaning of the Act. Nonetheless, s 5(10) of the SRC Act provides as follows: 'Subject to subsections (10A), (10B) and (10C), this Act does not apply in relation to service of a member of the Defence Force in respect of which provision for the payment of pension is made by: (a) the Veterans' Entitlements Act 1986; or (b) the Papua New Guinea (Members of the Forces Benefits) Act 1957.' 71 No party contended that s 5(10) of the SRC Act does not operate in accordance with its terms. 72 Question 3 should therefore be answered: Subject to subsections (10A), (10B) and (10C) of s 5 of the SRC Act, No.

entitlement of the applicants to relief 73 As mentioned in [10] above, the Tribunal concluded that 'Comcare/MRCC is liable under s 14(1) of the SRC Act' to pay compensation in respect of the deaths from mesothelioma of Messrs Hill and Etheridge respectively. It set aside the decisions under review which had been made by Comcare and the MRCC respectively and substituted for them decisions that Comcare and the MRCC were respectively liable to pay compensation under s 14 of the SRC Act. 74 In concluding that 'Comcare/MRCC is liable under s 14(1) of the SRC Act', the Tribunal made it plain that it did not understand that Comcare and the MRCC, which as mentioned above shared legal representation before the Tribunal, required the Tribunal to determine whether only one (and if so, which one) or both of them was or were liable under s 14(1) of the SRC Act. 75 Subject to the position of the MRCC, the above answers to the three questions of law identified as raised by the notices of appeal do not demonstrate that the applicants have an entitlement to the relief sought by them in their respective notices of appeal. Similarly, for the reason identified in [3] above, no relief would be obtainable under either the ADJR Act or the Judiciary Act. 76 The MRCC's entitlement to relief depends upon a finding that Messrs Hill and Etheridge and their respective dependants were eligible for a pension under the Veterans' Entitlements Act. 77 Section 13(1) of the Veterans' Entitlements Act provides: '13. Eligibility for pension (1) Where: (a) the death of a veteran was war-caused; or (b) a veteran is incapacitated from a war-caused injury or a war-caused disease; the Commonwealth is, subject to this Act, liable to pay: (c) in the case of the death of the veteran - pensions by way of compensation to the dependants of the veteran; or (d) in the case of the incapacity of the veteran - pension by way of compensation to the veteran; in accordance with this Act.' 78 The contention that the Veterans' Entitlements Act makes provision for the payment of pensions in respect of the service of Messrs Hill and Etheridge involves the assumption that their respective deaths were 'war‑caused' within the meaning of that Act. Section 8 of the Veterans' Entitlements Act identifies exhaustively the circumstances in which the death of a veteran is to be taken to be 'war‑caused'. The Tribunal did not make the findings necessary to characterise the deaths of Messrs Hill and Etheridge as 'war‑caused' within the meaning of the Veterans Entitlements Act. 79 Having regard to the answer given above to Question 3, it seems unlikely that the MRCC, as opposed to Comcare, is liable to pay compensation in respect of the deaths of Messrs Hill and Etheridge respectively. However, insufficient findings were made by the Tribunal to enable this Court to be certain that this is so. As it does not appear that the Tribunal was requested to make the necessary findings, and there is no relevant dispute between Comcare and the MRCC who continue to be represented by the same counsel, it is not, in my view, convenient for this Court to make those findings (see s 44(7) of the AAT Act). For the reason given above, the decision of the Tribunal is not authority for the proposition that the MRCC may have a liability to pay compensation under the SRC Act in relation to service of a member of the Defence Forces in respect of which provision for the payment of pension is made by the Veterans' Entitlements Act.

conclusion 80 Each of the five applications to the Court should, in my view, be dismissed. I would hear the parties on the question of costs. I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

AND: INGEBORG ETHERIDGE (AS THE WIDOW OF THE LATE CEDRIC JAMES ETHERIDGE)

THE PUBLIC TRUSTEE (AS LEGAL PERSONAL REPRESENTATIVE OF THE ESTATE OF THE LATE CEDRIC JAMES ETHERIDGE)

AND: ASSOCIATE PROFESSOR SD HOTOP, DEPUTY PRESIDENT, AND DR D WEERASOORIYA, MEMBER

AUDREY MAUDE HILL (AS THE WIDOW AND LEGAL PERSONAL REPRESENTATIVE OF THE LATE FRANK HILL)

INGEBORG ETHERIDGE (AS WIDOW OF THE LATE CEDRIC JAMES ETHERIDGE)

THE PUBLIC TRUSTEE (AS LEGAL PERSONAL REPRESENTATIVE OF THE LATE CEDRIC JAMES ETHERIDGE)

AND: AUDREY MAUDE HILL (AS THE WIDOW AND LEGAL PERSONAL REPRESENTATIVE OF THE LATE FRANK HILL)

WAD 128 of 2005 BETWEEN: MILITARY REHABILITATION AND COMPENSATION COMMISSION

AND: THE PUBLIC TRUSTEE (AS LEGAL PERSONAL REPRESENTATIVE OF THE ESTATE OF THE LATE CEDRIC JAMES ETHERIDGE)

WAD 129 of 2005 BETWEEN: MILITARY REHABILITATION AND COMPENSATION COMMISSION

AND: AUDREY MAUDE HILL (AS LEGAL PERSONAL REPRESENTATIVE OF THE ESTATE OF THE LATE FRANK HILL)

NICHOLSON J 81 I am also in agreement with the reasons for judgment of Branson J and the orders proposed. I certify that the preceding one (1) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholson.

Associate: Dated: 15 March 2006 Counsel for the Applicants: P Hanks QC and B Dube

Solicitor for the Applicants: Australian Government Solicitor

Counsel for the First and Second Respondents in WAD 123 of 2005 and the Third, Fourth and Fifth Respondents in WAD 124 of 2005 and the First Respondent in WAD 125, 128 and 129 of 2005: B Walker SC and M Carey

Solicitor for the First and Second Respondents in WAD 123 of 2005 and the Third, Fourth and Fifth Respondents in WAD 124 of 2005 and the First Respondent in WAD 125, 128 and 129 of 2005: Slater & Gordon

Counsel for the Third Respondent in WAD 123 of 2005 and the Second Respondent in WAD 124, 125, 128 and 129 of 2005: PD Elliott QC and R Wallace

Solicitor for the Third Respondent in WAD 123 of 2005 and the Second Respondent in WAD 124, 125, 128 and 129 of 2005: Sparke Helmore

Date of Hearing: 16 and 17 February 2006

Date of Judgment: 15 March 2006

Employees' Compensation Act 1930(Cth)ss 4(2), 9, 10

Government Employees) Act 1971(Cth)ss 5(1), 29

Employees' Rehabilitation and Compensation Act 1988(Cth)ss 4, 5(9), 7, 101(2)(a), 124, 125, 126, 128

Veterans' Entitlements Act 1989(Cth)ss 8, 13

Employees' Compensation Act 1948(Cth)

Administration Decisions (Judicial Review) Act 1975(Cth)

Workers' Compensation Act 1926(NSW)

Federal Court RulesO 53 Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 approved Birdseye v Australian Securities and Investment Commission (2003) 76 ALD 321 followed Connair Pty Ltd v Frederiksen (1979) 142 CLR 485 distinguished Favelle Mort Limited v Murray (1976) 133 CLR 580distinguished Fisher v Hebburn Limited (1960) 105 CLR 188 distinguished Hope v Bathurst City Council (1980) 144 CLR 1 cited GRE Insurance Ltd v Bristile Ltd (1991) 5 WAR 440 distinguished Kennedy Cleaning Services Pty Limited v Petkoska (2000) 200 CLR 286cited Ogle v Comboyuro Investments Pty Ltd (1976) 136 CLR 444 cited Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd (2005) 220 ALR 211 cited Qualcast (Wolverhampton) Ltd v Haynes [1959] AC 743applied Teubner v Humble (1963) 108 CLR 491 cited TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 followed

At a glance

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Judgment (32 paragraphs)

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Legislation Cited (12)

Cases Cited (12)