248 CLR 1
Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross (Matter No S417/2011) [2012] HCA 56
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Catchwords
248 CLR 1
Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross (Matter No S417/2011) [2012] HCA 56
Judgment (2 paragraphs)
[1]
Solicitors:
Maurice Blackburn, solicitors (Respondent)
File Number(s): 2015/00374503
[2]
EX TEMPORE DECISION
Before the Commission is a Notice of Motion, filed by the respondent to those proceedings, which are proceedings pursuant to part 6 of chapter 2 of the Industrial Relations Act 1996 ('the Act'). That motion seeks the proceedings be dismissed or permanently stayed. It does so on the basis that it is said that s.90 of the Act operates to prevent the Commission making any determination of the application by making an order under s 89 of the Act.
Section 90 is short and I will set it out here. It provides, under a rubric that I do not call in aid in interpreting it, as follows:
"The Commission must not determine an applicant's claim by making an order under s 89 if,
(a) another Act or a statutory instrument provides for redress to the person in relation to the dismissal; and
(b) a person has commenced proceedings under the other Act or instrument or has not lodged a written undertaking not to proceed under the other Act or instrument."
This motion, in my view, turns on a proper construction of s 90.
The facts are not relevantly in dispute and are contained in annexures to the affidavit sworn by Mr Battagello which forms exhibit 1 in these proceedings. Succinctly and relevantly summarised, the facts are as follows.
The applicant, Ms Fitzpatrick, was dismissed on 3 November 2014. She commences part 6 proceedings in the Commission on 19 November 2014. They do not proceed to arbitration yet for a range of reasons, for which nobody is to be criticised. On 10 May 2016 the applicant commences, through her agent, the union, proceedings pursuant to s 242 of the Workers' Compensation Act 1987, while maintaining the s 84 proceedings on foot. Having done that on 10 May, on 1 June 2016 the applicant seeks leave to discontinue the 242 proceedings in this Commission. On 2 June 2016 the Commission grants that leave and the s 242 proceedings are discontinued, leaving, ostensibly at least, the s 84 proceedings on foot. On 3 June the applicant files a s 90 undertaking, that is to say an undertaking in the terms required by subs (b) of s 90 in the Commission.
I said that the s 84 proceedings remain on foot and they are, in fact, set down for arbitration next week, over three days, before another member of the Commission. I regard it as appropriate to determine the Notice of Motion before then and, indeed, today. I do so with regard to my obligations under s 56 of the Civil Procedure Act 2005, given that those proceedings and their associated costs and use of resources are to commence so soon. But the proximity of the proceedings has no effect at all on a decision I give here, only its timing.
I thank both advocates for coming prepared, on short notice, with well organised and relevant submissions in written form and providing copies of authorities. I have been assisted by both of you in that regard and I thank you both. I thank counsel for the respondent particularly for maintaining his patience in the face of continued interruption and questions from the bench.
The facts to which I have adverted are not, as I say, disputed. What is in dispute is the proper reading to give the provisions of s 90. There is no decided caselaw which determines the whole of the construction point as it crystallises in this case. There is a case, an ex tempore decision of Schmidt J in Owens v NSW Police Service, unrep, 19 May 1998, which has some family resemblance to the case here. I will return to it. But the point before the Commission is squarely a construction point.
Now, the proper approach to statutory construction has developed over time and older cases do not necessarily assist, as the High Court has recently made determinative statements about interpretation in two 2012 cases, Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross (Matter No S417/2011) [2012] HCA 56; (2012) 248 CLR 378, and Australian Education Union v Department of Education and Children's Services [2012] HCA 3; 248 CLR 1. Those principles have been drawn together in this Commission in Public Service Association v Department of Education and Communities, (2013) 233 IR 245. The principles to which I refer are crystallised under a heading, perhaps unsurprisingly, saying, "Relevant principles" at paragraph 24 and following on page 357 of that decision.
Those principles are clear and they are, with respect to the Full Bench that set them out, correctly set out and I propose to follow them. I do not propose to read them out onto the record in the context of this ex tempore decision and I do not suggest, by plucking out certain parts of them, that I regard elements of the principles there set out as more important or predominant over others; I do not. I read the principles exactly as they are set out there and as the High Court has advanced them. But I do, however, emphasise the following matters.
It is the duty of a court to give the words of a statute the meaning the legislature is taken to have intended them to have. That ordinarily the legal meaning of a provision will correspond to its grammatical meaning, but not always. That the legal meaning of a statute is to be ascertained by reference to the general purpose, consistency and fairness. That it is conceivable that the context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction, may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.
And this: Determination of statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted. When construing a statute is not for a court to construct its own idea of a desirable policy, impute it to the legislature and then characterise it as a statutory purpose.
Remembering that the facts are that the applicant commenced proceedings under another statutory basis that provided redress in relation to the dismissal, which is the subject of the part 6 application, still before the Commission, then discontinued those proceedings, I turn to the statutory provision itself.
Section 90 of the Act is a hinged provision; it folds on two conjunctive propositions. It begins by providing that the Commission must not determine an applicant's claim by making an order under s 89 in certain circumstances.
Unsurprisingly, given those clear words, the authorities are consistent that that means the Commission may make other steps, for example permitting filing or carrying out a conciliation, without reference to subss (a) and (b) of 90 that follow. It is the making of a determinative order that the Commission cannot do in certain circumstances and, as I say, those circumstances are conjunctive.
The first is this, that another Act or statutory instrument provides for redress to the person in relation to the dismissal. That means to the particular applicant, in relation to the particular dismissal, which is in contest in their particular situation. It will be appreciated that in different factual circumstances one applicant may have other avenues of redress regarding a dismissal, where another, even if dismissed by the same employer, may not. It will depend upon the basis for dismissal and a range of other factors, including time.
Very well, we come to the first requirement to construe the Act. Demonstrably, there was another avenue for redress open to the applicant in relation to this dismissal. Demonstrably there was because the applicant availed herself of it by filing s 242 proceedings. That proceeding the applicant has now discontinued, which discontinuance has not, of itself, necessarily extinguished that avenue, but she has also filed a s 90 undertaking.
The question now arises, "Is it to be taken to be the case that there is now, in circumstances where an applicant has discontinued the other proceedings and given an undertaking not to proceed any other way, still to be said to be in existence, another Act or statutory instrument which provides for redress to this applicant in relation to this dismissal?"
The applicant argued that there was not, that the discontinuance and the undertaking together meant that there was now no redress available to the applicant; in that regard the decision in Department of Corrective Services v Boda (2006) 150 IR 169 was called in aid.
In Boda the applicant had previously filed proceedings in the Government and Related Employees' Appeal Tribunal, or GREAT, and had discontinued those proceedings. The applicant could not, because of an absolute statutory time bar, go back to GREAT, not on any basis whatsoever and had no other, it was accepted, avenue of redress regarding the dismissal before this Commission. And Boda was decided on the subs (a) point, by which I mean it was decided on the basis that it was held in Boda that in the factual circumstances of that applicant's case there was not another Act providing redress to that applicant about that dismissal. That is, as the Full Bench in Boda was very careful to point out with precision, the ratio of the case.
The ratio in Boda does not assist in determining the immediate question here because the facts are relevantly different. Here there is still another Act which, on its face, provides redress. There is no doubt about that. As I say, the applicant has invoked it. The applicant has discontinued that application and has undertaken not to re-enliven it. But, in my view, that does not extinguish the existence of another Act providing redress, accepting, as I do, that s 90 expressly refers to this applicant, in relation to this dismissal.
I observe that a discontinuance is not necessarily the final disposition of a matter. Equally, undertakings are given for a purpose to a particular court or tribunal. That court or tribunal would generally hold a person to the undertaking but there are a range of reasons and circumstances in which a person can be released from an undertaking. Those propositions would go against a finding that there is no other Act providing redress in relation to the dismissal.
But it is not on that basis that I regard the words of s 90(a) to mean that another Act relevantly exists in this case. In my view, the injured worker provisions comprise a statutory regime having application to the applicant, and it is sufficiently clear on the plain words of subs 90(a) without more, and without considering the actions of the applicant, that the test in subs 90(a) is met in this case. The circumstances here are different to Boda, where no other statutory provision existed to offer redress to the applicant in that matter at the time that the question fell to be decided.
I find that there is another Act or statutory instrument which provides redress at the relevant time, as it was said in Boda, which is now. That means that the second limb of the conjunctive provisions of s 90 is invoked, that is subs (b).
Now, this limb is itself made up of two disjunctive propositions, the satisfaction of either one of which will mean that the Commission must not make a final order determining the matter. It is proper, I think, to put the statutory provision again on the record, in the context of what I am about to say.
Subs 90(b) provides:
"The person has commenced proceedings under the other Act or instrument or has not lodged a written undertaking not to proceed under the other Act or instrument."
As to the first of those, I am urged by the respondent to find that the words "has commenced", mean no more than the flat ordinary meaning of those words and, therefore, that, as the applicant undoubtedly, at one point in time, commenced other proceedings, the first disjunctive test is met. It would follow, necessarily, that the Commission must not make an order under s.89 determining the matter.
Against that proposition, which is the question that lies at the heart of the notice of motion, a number of arguments arose. First, what the Full Bench of this Commission said in Boda at paragraphs 32 and 33 is called in aid by the applicant. There is no doubt and no dispute but that those views are in obiter. They are demonstrably and expressly not the basis for the determination of that case. Accordingly, as the rule in Yerkey v Jones (1939) 63 CLR 649 clearly provides, they are not binding on me.
But the Full Bench has taken the trouble to record its view and to express the rationale behind it at some length. The Full Bench says that to read s 90 as the respondent here argues it ought be read, would be "to accept an interpretation prone to arbitrary and inequitable results", contemplating, as they say, the circumstance of someone commencing other proceedings regardless of the present status of those proceedings. And the Full Bench goes on to point to the undoubted principle which, on a range of authorities, underpins s 90; that is, to avoid duality of proceedings.
It is sufficiently clear, on authority binding on me, that the mischief the statute seeks to defeat is duality of proceedings. Public Service Association v NSW Crimes Commission (1993) 48 IR 363 says so expressly, as does Tasovac v New South Wales Police (1998) 83 IR 410.
Neither of those cases, though, decide the point here. They were concerned with another aspect of the statutory regime, that part requiring undertakings to be given. I refer to them only because they are authority for the proposition that the mischief the statute seeks to defeat is duality of proceedings.
I note that Boda also makes that point at [29], although ultimately it must be said that part of the consideration does not form part of the strand of ratio in that decision.
What the applicant goes on to submit is that, given that point, there is here no risk of duality of proceedings and, accordingly, the motion ought be dismissed.
The decisions called in aid by the applicant do not go that far, and that is also impermissibly to turn to a different question than the one the statute actually poses. Certainly, the policy underpinning the statute, the mischief the statute seeks to correct are, as the High Court informs us, matters which can assist in determining the meaning of the statute. But they do not allow a different question to be asked in interpreting the statute than the words of the statute itself. Statutory construction is just that, it is the textual analysis of the words of the statute, as just about every judge, in all the multiplicity of decisions in the High Court in both Certain Lloyds Underwriters and Australian Education Union went to the trouble of stating. It does not require or allow for a search for what those who passed the legislation had in mind and it does not allow a court to construct its own idea of a desirable policy outcome and impute the legislation.
The point is that the question here is not "Is there now any risk of duality of proceedings", which is the question the Commission asked itself in obiter in Boda. The question here is about the words of the first limb of subs 90(b). Do the words "the person has commenced proceedings under any other Act" mean narrowly what they may be read to say on their face by the use of past tense 'has commenced', that is, that if a person has commenced any proceedings at any time, whatever their status now, that is the whole of the test upon which the first limb of 90(b) turns?
I accept that the Act is beneficial legislation and it must be so construed. Chau v Visy Board Pty Ltd [2012] NSWIRComm 101 sets out, albeit referring to other legislation, the general principles of beneficial construction of an instrument.
Those principles do not mean that the Act must be read to benefit applicants whenever there is a question of interpretation. The principles of construction of beneficial legislation do not go nearly that far. And I say again, all of these precepts can only be applied to the framework of the actual words used, the actual text of the statutory provision.
Now, as I read s 90, it has this effect; that the point at which the Commission might make an order, the Commission must satisfy itself that if s 90(a) has been met, as I here hold that it has, then neither of the conditions in (b) are extant. We can put aside the second one for the purpose of this present argument.
I am satisfied, and I am not here relying on Boda or any other decision, that the square intent and purpose of this part of the Act is to avoid duality of proceedings. That is why the s 90(b) limb lumps together two disjunctive elements, which both go to the same proposition, that is to preventing duality of proceedings. I form that view, as I say, on the face of the Act itself, without reference to arguments in obiter in other cases.
I am mindful of the Interpretation Act 1987 which provides, at s 33, that in the interpretation of a statutory provision the construction that would promote the purpose or object underlying an Act shall be preferred to a construction that would not promote that purpose or object. I am obliged to apply that to any consideration of statutory construction.
So, how is the Act actually to be read? As the Court of Appeal held in Rail Corporation of New South Wales v Brown [2012] NSWCA 296 [45], citing with approval an earlier decision in R v Young (1999) 46 NSWLR 681:
"In order to construe the words actually used by the parliament",
and I interrupt the quote to interpose, and that is precisely the task which must be carried out here -
"it is sometimes necessary to give those words in effect as if they contained additional words. This does not permit adding words to the statute. It rather involves reading a statute as if the additional necessary words had effect. That may only be done, however, if the words which actually appear in the statute are open to such a construction."
Based on what I see to be the clear intent of the words of the statute, I read s 90(a), where it uses the words "a person has commenced proceedings", to refer to the situation the Commission is to assess at the time it comes to making an order. That is, I read it to mean that the existence of proceedings at the time that the Commission comes to consider s 90 is what is to be addressed, not whether at a time in the past proceedings were commenced that do not remain on foot. In my view, the words of the Act can sustain that construction.
Put very squarely, I read the words of subs 90(b)(ii), using the words of the Court of Appeal in Brown, as if the necessary additional words to give the statute its clear purpose were there. I read s 90(b) as if the words "and maintains" existed, after the words "has commenced".
If there are proceedings on foot under another statute at the time the Commission addresses itself to s 90, no determination of the s.84 proceedings before the Commission can be made. That is entirely clear. It follows, of course, that as a matter of the proper uses of resources of the Commission the s.84 case would not be heard in arbitration in those circumstances. But I am not able to read s 90 as meaning, as I was urged to do by the respondent, that a closed event in the past could prevent the Commission exercising its jurisdiction under s.89. As I say, I do not base that on any argument raised - and it is only argument - in Boda, or anywhere else although the view I take is, as it happens, consistent with the decision in Owens. I base my reading of the Act on a reading of its actual words together with regard to what I take, on authority, to be its underlying purpose.
It follows that I do not grant the orders sought in the Notice of Motion and it is dismissed.
PETER NEWALL
Commissioner
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Decision last updated: 14 July 2016