of that injury or death may be made, commenced or continued after the commencement of this section as if this Act had never commenced and for that purpose the repealed Act shall be deemed to continue in force. (2) Notwithstanding subsection (1), a person may claim compensation under this Act in respect of an injury or death referred to in that subsection and on his so doing this Act shall apply as if the injury or death occurred after the commencement of this section, and subsection (1) shall have no effect." 12. The learned Chief Stipendiary Magistrate was of the view that the appellant could only make out an application under s. 189(2) if she could establish a subsisting cause of action under the earlier Workers Compensation Act. 13. Mr Waters disputes this view. He submits that the expression "cause of action" does not appear in s. 189(2) and it is neither necessary nor appropriate to import it. He argues that the two sub-sections allow alternative approaches to workers or dependants claiming compensation in respect of injury or death of a worker occurring before the commencement of the Work Health Act and arising out of or in the course of employment. The applicant may either elect to commence or continue a claim as if the Work Health Act had not been passed, and make out the appropriate qualifying circumstances under the repealed Act and seek the appropriate benefits under that Act. That is s. 189(1). Or the applicant may elect to proceed under the Work Health Act and qualify for and seek the benefits there set out, but without the necessity of establishing a prior cause of action. That is s. 189(2). 14. Mr Riley for the respondent says that if that is the interpretation to be put on s. 189(2) rather extraordinary results will follow. For if the meaning is simply that a person may now claim compensation in respect of an injury or death arising out of or in the course of employment which occurred before the commencement of the Work Health Act, then countless claims not sustainable under the repealed Act can be made by any person who can now bring himself or herself within the above description even if the event relied on took place many years earlier. Worse still, he suggests, the interpretation put forward by Mr Waters would mean that a person who had already received compensation under the repealed Act could claim again and receive a further award under the new Act. For under that interpretation a person claiming under sub-section (2) of s. 189 need not base the claim upon any earlier cause of action either subsisting or concluded, but need only establish an injury or death occurring before the commencement of the Work Health Act and which arose out of or in the course of employment. I think, however, that the latter argument goes too far. It would be common ground between Mr Riley and Mr Waters that the basis of any claim under either Act would have to be that an injury arose out of or in the course of employment. That issue, once determined between the same parties, raises what Williams J. in Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446 at 460 refers to as "a form of estoppel by res judicata which is often referred to as issue estoppel and can be pleaded in bar whenever in a proceeding of a court of competent jurisdiction between the same parties or their privies an issue has been once taken and found. Such an issue is then concluded between the parties taking it and their privies according to the finding thereof so as to estop the parties from again litigating that fact once so tried and found. Everest and Strode in the Law of Estoppel 3rd Ed. (1923) p 52, 'Nemo debet bis vexari'". 15. Fullagar J. in the same case considered the rule was founded more on public policy than estoppel, being based on the two well known principles that there should be an end to litigation and that no person should be troubled twice in the same cause - see p 466. See also Dixon J. in Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 at 531. A Workers' Compensation Court or Commission would be a court of competent jurisdiction to determine an issue of this sort between parties. See Somodaj v Australian Iron Steel Ltd (1961) SR (N.S.W.) 305. 16. Insofar as Mr Riley raises what may be termed a "floodgates" argument I would not find that impressive if the language of the sub-section permitted no other interpretation. It is for Parliament and not the Courts to determine policy; although if that policy appears plain in a statute the Courts will be assisted in interpreting its provisions by reference to that policy. But it is not for the Courts to refuse to give effect to a plainly expressed legislative policy because they disapprove or see the floodgates opening. That would be an unwarrantable interference with the legislature; which must be presumed to have foreseen any effects which rationally follow. In such cases the Judge may warn but not disobey. "The judge," says Benjamin Cardozo, "legislates only between gaps...So far as they (the Judges) are the mere mouthpieces of the legislature speaking thoughts and enforcing commands that have been unmistakably set down, their activity is in its essence administrative or not judicial. Where doubt enters in, there enters the judicial function." (Benjamin Cardozo - Selected Writings - Matthew Bender

1975 Reprint pp 154, 257). 17. In my view, however, s. 189(2) does permit of two interpretations; although, for the reasons I give later, one alternative seems to me more appropriate than the other. Once that point is reached Mr Riley is on firmer ground, not necessarily by pointing to devastated flood plains, but rather by comparing an interpretation which would not be sensibly in keeping with the policy of the Act with one that would. In Holmes v Bradfield R.D.C. (1949) 2 KB 1 at 7: (1949) 1 All ER 381 at 384, Finnemore J., delivering the judgment of the Kings Bench Division (Lord Goddard C.J., Humphreys and Finnemore JJ.), said:- "The mere fact that the results of a statute may be unjust or absurd does not entitle this court to refuse to give it effect, but, if there are two different interpretations of the words in an Act, the court will adopt that which is just, reasonable and sensible rather than that which is none of these things." See also: Abbey v Dale (1850) 20 LJCP 33 at 35 (Per Jarvic C.J.): R v Tonbridge Overseers (1884) 13 QBD 339 at 342 (per Brett L.J.). 18. The Work Health Act not only replaces and repeals the Workers' Compensation Act, but, by s. 52, abolishes any claims after the commencement of the Act between worker and employer for damages at common law. The Act establishes a Work Health Court to which claims for compensation can be made (s. 94), and a Work Health Authority which has wide powers and functions to advise, promote, investigate and enforce occupational health and safety policy and standards in the Territory. (Ss. 6, 10 and 11). In Part V the Act sets up the prescribed methods by which compensation is to be calculated for death, disease or injury occurring to a worker arising out of or in the course of employment, and to the worker's dependants. Other parts of the Act provide for rehabilitation training, workplace modification and counselling. In short, and without multiplying details, its policy is to go far beyond the legislation which it repeals, and to set up a code within which the whole area of compensation, rehabilitation, occupational health and safety and the rights, duties and liabilities of employers to workers and their dependants in these and related areas are fully set out. 19. The intention is clearly to cover the field in these areas, excepting only entitlements under Commonwealth or extra-territorial law (see s. 54); and this intention is manifested not only by the provisions I have set out but by the terms of the preamble to the Act. Such wide ranging policy (underlined by the fact that the Act is a new Act with a new title and not expressed as an amending Act to the earlier legislation) carries with it a strong inference that it is prospective rather than retrospective. Many of its provisions indeed are unknown to the repealed Act (e.g. the Work Health Authority and its functions); and many are so radically different that, if considered retrospective, they would cause a quite fascinating degree of chaos. Compare, for example, the calculation of weekly payments under Schedule 2 of the repealed Act with s. 65 of the new Act; and note the abolition of lump sum payments. 20. Once this is properly understood, the provisions of s. 189 fall into place. As always, where a new Act creates new or different rights, provision must be made to protect those whose rights accrued before the new Act came into force. That is done quite simply in two ways; either by permitting such a person to rely upon the position which prevailed before the new Act came into force (and for that purpose disregarding the situation created by the new Act); or by permitting that person to use the procedures of the new Act and thereby obtain the benefits provided under the new Act. In that way the earlier rights are preserved, and in some cases enhanced, since the applicant is given the opportunity to obtain benefits now available which may not have been available under the repealed Act, or may be less than what is available under the new Act. But it is one thing to preserve rights: it is quite another to create them retrospectively. Nothing of that nature is suggested anywhere other than in s. 189(2). As a matter of reason and commonsense one should assume that the legislature would not have undertaken the wide-ranging and very significant step of creating retrospective rights for an indeterminate number of persons without making that very clear in the statute; and including at least some limiting factors of time or circumstance whereby those rights would be circumscribed. Similarly with obligations; for not only rights but obligations would be involved in such a change. If, for instance, an employer is to be suddenly faced with a different set of obligations in a matter long gone, the Act should speak clearly of those changes. 21. In Re Athlumney: Ex parte Wilson at 551-2 Wright J. says:- "Perhaps no rule of construction is more firmly established than this - that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matters of procedure, unless that effect can be avoided without doing violence to the language of the enactment." 22. In Ogden Industries Pty Ltd v Lucas ; at 564 Kitto J. said:- "A statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to past events." 23. For this proposition His Honour cited Maxwell v Murphy ; at 267 (per Dixon C.J.: Chang Jeeng v Nuffield (Australia) Pty Ltd ; at 637-8: Fisher v Hebburn Ltd ; at 194 (per Fullagar J.). 24. In my view s. 189 is essentially procedural, i.e. if a person chooses to exercise an existing right, alternative procedures are permitted. But, if s. 189(2) is employed, the procedure for enforcement of the right will involve a different method of calculation for compensation which might be to the advantage of the applicant. To that extent it might enhance the existing right which he must possess before claiming compensation. But it does not create a new right. The subsection remains a matter of procedure or, to use the expression of Dixon J. (as he than was) in Kraljevich v Lakeview and Star Ltd ; at 652, a matter of the "mode in which rights and liabilities are to be enforced or realized". In that case His Honour said:-

"The presumptive rule of construction is against reading a statute in such a way as to change accrued rights the title to which consists in transactions passed and closed or in facts or events that have already occurred. In other words, liabilities that are fixed, or rights that have been obtained, by the operation of the law upon facts or events for, or perhaps it should be said against, which the existing law provided are not to be disturbed by a general law governing future rights and liabilities unless the law so intends, appears with reasonable certainty. But, when the alteration in the law relates to the mode in

which rights and liabilities are to be enforced or realized, there is no reason to presume that it was not intended to apply to rights and liabilities already existing and its application in reference to them will depend rather upon its particular character and the substantial effect that such an operation would produce." 25. In my view there is nothing in s. 189 which suggests that new legal consequences are to be attached to facts or events happening before its enactment save in the limited way I have mentioned that a person with a pre-existing right to compensation may gain some additional benefits by using the procedure offered by s. 189(2). 26. Again, the authority of Dixon C.J. can be quoted Maxwell v Murphy (supra) at 267 in a passage which he repeated in Chang Jeeng v Nuffield (supra) at pp 637-8: "The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts of events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed. The basis of the distinction was stated by Mellish L.J. in Republic of Costa Rica v Erlanger (1876) 3 Ch D 62. 'No suitor has any vested interest in the course of procedure, nor any right to complain, if during the litigation the procedure is changed, provided, of course, that no injustice is done'." 27. All this, I repeat, falls to the ground if the provisions of s. 189(2) admit of no other construction than that put forward on behalf of the appellant. Such was the case in Sunshine Porcelain Potteries Limited v Nash [1961] UKPCHCA 2; (1961) 104 CLR 639, a decision of the Privy Council affirming the majority decision of the High Court at [1959] HCA 7; 101 CLR 353. In that case their Lordships, while conceding "the strong presumption that an Act is not intended to be retrospective" (p 642) considered that the circumstances of the case and the express words of the enactment under consideration precluded any such restrictive meaning to be given to its provisions. That is not the case here where s. 189(2) permits of two interpretations, only one of which seems to me permissible in view of the general rule against retrospectivity and the rather severe difficulties which would ensue if the subsection was given the full retrospective operation submitted by Mr Waters. In my view, the considerations already discussed assist in confirming the interpretation I now put forward, although it seems to me that, even without that assistance, one would reach the same interpretation by grammatical analysis. 28. The main thrust of the appellant's argument lies in the absence of the expression "cause of action" in s. 189(2). That expression appears in s. 189(1) and it is argued that the expression "an injury or death referred to in that subsection", (which appears in subsection (2) but must in its terms relate back to subsection (1)), must therefore import the terms of s. 189(1) only to the extent of meaning, "an injury or death arising out of or in the course of his employment before the commencement of this section". One could then paraphrase s. 189(2) in this manner:- "(2) Notwithstanding subsection (1), a person may claim compensation under this Act in respect of an injury or death arising out of or in the course of his employment which arose before the commencement of this section..." 29. It is then argued that, there being no reference to a "cause of action" arising before the commencement of the Act, the terms of s. 189(2) are at large, and apply to any injury or death arising out of or in the course of employment, whether that event took place before or after the commencement of the section, and whether or not a cause of action previously existed. The doctrine "expressio unius est exclusio alterius" is called to aid on the basis that the presence of the expression "cause of action" in subsection (1), and its absence in subsection (2), is further proof that the events referred to in subsection (2) do not need to have their genesis in a previous cause of action. 30. In my view however the flaw in the argument is the restriction of the term "an injury or death referred to in that subsection" to relate only to "an injury or death arising out of or in the course of employment". There is no grammatical justification in restricting it in that way. When subsection (2) uses the phrase "in respect of an injury or death referred to in that subsection" i.e. subsection (1), what is referred to is the full ambit of the expression "injury or death" as it appears in subsection (1). That subsection does not speak of "injury or death" simpliciter. It speaks of injury or death out of which a cause of action arose. The expression "referred to in that subsection" must govern the context of how the expression "injury or death" arises in subsection (1). And the expression there arises only in a particular context; and that is a context in which "a cause of action" arose "in respect of" an injury or death. The subject of the verb "arose" is not "an injury or death" (which is a subclause) but "a cause of action". You do not, therefore, merely import the subclause but the whole clause governing the verb. What is referred to in subsection (b) must be an event which "arose" before the commencement of the section. The event however is something out of which a cause of action arose. To put it in another way: the circumstances in which an injury or death can be the subject of proceedings under subsection (1) are that, (a) "a cause of action"; (b) arose; (c) before the commencement of the section; (d) which cause of action was in respect of an injury or death arising out of or in the course of employment. When, therefore, subsection (2) speaks of "an injury or death referred to in that subsection", the term "referred to" must be understood to import the complete term of reference i.e. all the circumstances in which the expression arises. There is no basis for referring merely to "an injury or death arising out of or in the course of employment" without referring to the framework in which the expression is placed, and that framework must have, as one of its constituent parts, a cause of action. 31. The first word of subsection (1) is important. That word is "where", and it governs the whole of the succeeding phrase which is: "a cause of action in respect of an injury or death arising out of or in the course of employment arose before the commencement of this section". 32. To say that the word "where" governs that phrase means that it sets the stage for all of what comes after in that phrase. When, therefore, subsection (2) uses the phrase "in respect of an injury or death referred to in thatsubsection" the words "in respect of", and "referred to" must relate back to the whole term of reference in which the expression "injury or death" occurs in subsection (1); and that imports the whole phrase I have already set out which commences with the word "where". The construction of the phrase is such that parts of it cannot be taken piecemeal out of context. 33. This view is, I think, strengthened by a comment of Gibbs J. (as he then was) in Geraldton Building Co. Pty. Ltd v May [1977] HCA 17; (1977) 136 CLR 379 at 394. His Honour was construing a phrase in s. 7 of the Western Australian Workers' Compensation Act. The phrase was, "where the worker so elects", and His Honour remarked:- "The subsection does not use the word 'when' but 'where', meaning 'in a case in which', or in other words, 'if'." If one reads the word 'where' in that sense in s. 189(1), and commences the subsection with the phrase 'in a case in which a cause of action in respect of an injury or death arising out of or in the course of

employment arose before the commencement of this section', it seems somewhat clearer that a particular set of circumstances is postulated which is imported in full into s. 189(2) by the use of the expressions 'in respect of' and 'referred to'." 34. Although subsection (2) might have been more felicitously expressed, I have therefore no doubt as to its meaning and I have no doubt that its purpose is to allow a person who has a cause of action in respect of an injury or death arising out of or in the course of employment, which cause of action arose before the commencement of thesection, to adopt the procedures and methods of calculation of compensation permitted under the Work Health Act. It does no more than that; and specifically it does not permit a person who had no cause of action in respect of an injury or death arising out of or in the course of employment which arose before the commencement of the section to establish a claim now under the Work Health Act. 35. The old legislation retains its dominion over the era it governed. In that era certain rights and obligations were recognised. Others were not. The new legislation does not intrude into that era other than to provide the legislative bridge over which those with recognised rights and obligations may cross. Not others. 36. A worker sustaining an injury arising out of or in the course of his employment which arose before the commencement of s. 189 of the new Act will necessarily have a cause of action under the repealed legislation which would allow him to proceed using the alternatives provided by the section. 37. Similarly "dependants" of the worker, where the worker's death occurs before the commencement of the new Act may choose to proceed either under the new or the repealed Act if at the time of the worker's death they had a cause of action i.e. they qualified as dependants under the repealed Act. Otherwise not. 38. It seems well established that the rights of the dependants and the corresponding liabilities of the employer must be ascertained at the time of the death of the deceased. Ogden Industries Pty Ltd v Lucas (1968) 119 CLR 32; (1970) AC 113 (P.C.). Egan v City of Northcote (1973) 47 ALJR 299 (P.C.), affirming the decision of the Full Court of the Supreme Court of Victoria [1971] VicRp 86; (1971) VR 712. In the latter case, the Victorian Workers' Compensation Act 1958 gave the widow of a worker whose death resulted from or was materially contributed to by an injury (which was defined to include "disease") arising out of or in the course of employment a right to compensation. In 1965 the Act was amended by including a new definition of injury which required that the inclusion of a disease in the definition was qualified by a requirement that the employment was a contributing factor to the disease. A worker died after the commencement of the amendment from a disease which could not be proved to have been contributed to by his employment. Their Lordships of the Privy Council held that the widow's claim failed. Lord Pearson, delivering the judgment of the Judicial Committee said at p 302:- "In the end there is a comparatively simple point

of construction. It follows from the decision and reasoning in the Ogden case that the appellant acquired no vested right before the time of her husband's death, and her claim to have acquired a right at that time must be tested by the law in force at that time." 39. In that case the Full Court of the Supreme Court of Victoria had applied Ogden's case to the same effect. Their Honours said ((1971) VR at 714):- "It appears to us to be involved in the first of the above-mentioned matters decided by their Lordships (in Ogden's case) that in the case of death it is the law at the date of death by which the rights and liabilities of the parties are to be tested and ascertained." 40. In the present case, therefore, the applicant's right to claim as a dependant must be tested and ascertained as at the date of the death of the deceased. That date, being before the commencement of the Work Health Act, must be tested by the Workers' Compensation legislation prevailing at that time. If that legislation did not bring her within the qualifying provisions then existing I can see nothing in s. 189 which changes that position. 41. There may be other matters arising out of this appeal. They have not yet been argued because, as I understand it, what was sought was a preliminary ruling as to the meaning and ambit of s. 189. No doubt the ruling will have an effect on what takes place in further proceedings. All that I can properly do at this stage is give the ruling in the terms I have set out above and adjourn the further hearing of the proceedings with liberty to apply.