Plaintiff v Defendant

1 There are two related proceedings before me. Jane Byrne is the appellant in one and the plaintiff in the other. The Transport Accident Commission ("TAC") is the opposite party in both. I will call Ms Byrne the plaintiff. In late February 1999 she was five months' pregnant. She claims that on 27 February 1999 she was travelling as a passenger in a car being driven by her husband in suburban Melbourne and that she was wearing a seat belt. She claims that her husband braked heavily to avoid a taxi which allegedly stopped suddenly ahead of them and that she was thrown against the seat belt. She claims that a few days later, as a result, she lost the foetus she was carrying.

2 On 29 May 2003 the plaintiff submitted a claim for compensation under the Transport Accident Act 1986 ("the Act") to the TAC in relation to the alleged accident, specifying her injury as loss of a foetus. On 5 June 2003 the TAC rejected her claim as being out of time. The plaintiff now accepts that the claim was out of time.

3 On 28 October 2004, in response to a letter from the plaintiff's solicitors foreshadowing a common law claim and referring in that regard to the absence of any assessment by the TAC of the plaintiff's "degree of impairment" within the meaning of the Act, the TAC wrote to the solicitors asserting that an impairment determination could not be made in the absence of an accepted claim for compensation.

4 On 13 December 2004 the plaintiff issued a writ in relation to the alleged accident claiming common law damages for the loss of the foetus. The nominated defendant, effectively the TAC, immediately objected to the maintainability of the action on the ground that the plaintiff had not passed through any of the "gateways" to common law proceedings specified in s 93 of the Act. It appears to be common ground that no such "gateway" is passed through unless and until the TAC "has determined the degree of impairment of the person [who is injured as a result of a transport accident] under section 46A, 47(7) or 47(7A) [of the Act]"and the injury is, or is deemed or found to be, a "serious injury" as defined.[1]

5 Ironically, under s 93(17) of the Act "loss of a foetus", without more, is deemed to be a serious injury. While the plaintiff accepts that she needs a determination by the TAC of her degree of impairment, she has asserted that loss of a foetus is not an "assessable impairment" (and, indeed, she has asserted that this is common ground). However that may be, the TAC does not suggest that the present proceedings are moot on the basis that it is not possible for it to determine the "degree of impairment" of a person whose only injury is the loss of a foetus. Indeed the TAC has asserted that it could determine the degree of impairment of such a person at 0%. I will proceed on that basis.

6 On 15 February 2005, presumably with an eye to overcoming the TAC's objection to the common law writ, the plaintiff by her solicitors applied to the TAC for a determination under s 46A(1A) of the Act of the degree of her impairment with respect to the injury constituted by the loss of the foetus.

7 On 26 February 2005 the TAC wrote to the plaintiff's solicitors in the following terms (so far as principally relevant):

"Thank you for your letter dated 15 February 2005 requesting the TAC make a determination of your client's degree of permanent impairment pursuant to section 46A(1A) of the Transport Accident Act.

Unfortunately the TAC is not able to consider your request, as no claim for compensation was made within the legislated three year time limit from the date of the transport accident or the date the injury first manifested itself, pursuant to section 68 of the Act."

The letter went on to express concern that the plaintiff may be accumulating significant legal costs in vain given the "clear legislative requirements" and the earlier decision of the Appeal Division of the Supreme Court in Transport Accident Commission v Locastro[2] "in relation to the time limit for making a claim under the Act".

8 The decision conveyed by that letter is central to each of the two proceedings presently before me.

9 The first proceeding in time is an appeal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act") by the plaintiff against a decision made by the Victorian Civil and Administrative Tribunal ("VCAT") on 23 March 2006 to the effect that it had no jurisdiction to review the TAC's decision of 26 February 2005.

10 The second matter is a proceeding brought by the plaintiff by originating motion under Order 56 of the Supreme Court Rules seeking judicial review, directly, of the TAC's decision.

11 On 18 August 2006 Bongiorno J granted the plaintiff leave to appeal against VCAT's decision and also granted her a necessary extension of time to commence the judicial review proceeding.

12 I have decided that the appeal against VCAT's jurisdictional decision should be dismissed but that the proceeding for judicial review of the TAC's decision should succeed and that the TAC should be required to reconsider its decision. It is convenient to deal first with the plaintiff's direct challenge to the TAC's decision.

The TAC's decision: relevant legislative provisions

13 The plaintiff's application for an impairment determination was made in reliance on s 46A(1A) of the Act alone. However it is necessary to place that provision in its statutory context. It needs to be compared and contrasted with, in particular, subsections 46A(1) and 47(7) as they stood at the relevant time. Sub-sections 46A(1) and (1A) and 47(7) all fell within Part 3 of the Act, headed "Compensation" They were as follows:

(1) The Commission must determine the degree of impairment of each person who is injured as a result of a transport accident and appears to the Commission to be or to be likely to be entitled to an impairment benefit, as at-

(a) if the person was not a minor when the accident occurred-

(ii) 3 years after the accident, or 3 years after any injury first manifests itself (as the case may be)- whichever occurs first; or

(b) if the person was a minor when the accident occurred or when the injury first manifested itself-

(i) when the person attains the age of 18 years, if the injury has stabilised by that time; or

(B) when the person attains the age of 21 years- whichever occurs first.

(1A) If the Commission has not made a determination of the degree of impairment of a person injured as a result of a transport accident because it does not appear to the Commission that the person is or is likely to be entitled to an impairment benefit, the person may, before the expiry of the period of 6 years after an injury resulting from the transport accident first manifests itself, apply to the Commission for a determination of the degree of impairment as at the date of the application.

1. (7) Despite section 46A(1), the Commission may for the purposes of proceedings for the recovery of damages in respect of the injury at any time determine the degree of impairment of a person who is injured as a result of a transport accident and who-

(a) is or may be entitled to compensation under this Act; or

(b) is not entitled to compensation under this Act by virtue of section 37, 38, 38A or 42-

if the Commission is satisfied that the injury has stabilised or has substantially stabilised.

14 The procedure for making claims under the Act was provided for in Part 4. The following provisions of ss 67 and 68 (within Part 4) are of present relevance:

(1) Subject to subsection (3), a claim for compensation under this Act -

(2) A defect, omission or irregularity in a claim for compensation does not affect the validity of the claim and the claim must be dealt with in accordance with this Act unless the defect, omission or irregularity relates to information which is not within the knowledge of the Commission.

(b) who is a dependant or a surviving partner of a person who dies-

as a result of a transport accident to which Part 3 applies may make a claim for compensation under that Part within one year-

(d) in the case of injury, if no injury manifested itself at the time of the transport accident, after any injury first manifests itself.

(2) If the Commission considers there are reasonable grounds for a delay in making a claim in accordance with subsection (1), the Commission may accept a claim for compensation under Part 3 at such later time before the expiration of three years after the transport accident or death or after the injury first manifested itself, as the Commission approves.

15 The principal issue in the judicial review proceeding is whether the TAC was correct in law in deciding that in the absence of a timely claim by the plaintiff for statutory compensation it was not able to consider her request for an impairment determination under s 46A(1A) of the Act.

16 The TAC does not concede that the alleged accident occurred or that the plaintiff's loss resulted from it. Those factual questions have not yet been addressed by the TAC and they cannot be addressed in this proceeding. I will refer to them as "the deferred questions". However the TAC's legal submissions include a contention that the plaintiff cannot in any event answer the description in s 46A(1A) of "a person injured as a result of a transport accident", simply because she has not lodged a timely claim.

17 A further issue arises from a submission made by the TAC, in the nature of an alternative justification of its decision, as follows. Even if the absence of a timely claim did not of itself preclude the TAC, in law, from acceding to the plaintiff's application, nevertheless the absence of such a claim was and is the reason why, in fact, the TAC had not made a determination of the plaintiff's degree of impairment. The reason was not "because it does not appear to the [TAC] that the [plaintiff] is or is likely to be entitled to an impairment benefit "within the meaning of s 46A(1A). So that subsection was inapplicable in any event, according to the TAC.

18 The TAC confronts the obvious difficulty that there is no express mention in s 46A(1A) of a requirement of a timely claim for statutory compensation. In seeking to overcome that difficulty the TAC places some stress on the relevant legislative history. It is useful at this stage to recount that history.

19 This requires further reference to the decision of the Appeal Division in Transport Accident Commission v Locastro[3]. That decision was handed down on 19 April 1994. At that time the Act contained a provision relevantly equivalent to s 46A(1), imposing a duty on the TAC to carry out an impairment determination in specified circumstances, but there was no equivalent to s 46A(1A). The respondent had been rendered a paraplegic by a gunshot fired from a passing car. The Appeal Division assumed in his favour (without deciding) that he was injured "as a result of a transport accident" within the meaning of the Act.[4] However, he had omitted to make a claim within the time required by s 68. The Appeal Division held that under the then equivalent of s 46A(1), the degree of impairment was to be determined only if the injured person appeared to the TAC "to be or be likely to be entitled to an impairment benefit" and that that could not be so when the person's claim to compensation under the Act was plainly statute barred.[5] No other provision under which impairment determinations could be made had any application. Accordingly, it could not be shown that the TAC had any power to assess the respondent's impairment. He was therefore unable to pass through any of the "gateways" of s 93.

20 Sub-section 46A(1A) was introduced in its original form in the year 2000. As first enacted, it contained the words "as at 18 months after a transport accident" immediately before the word "because". To a certain extent, this reflected s 46A(1) of the Act as then in force and as it had been in force at the time of the judgment in Locastro, in that s 46A(1) had required the TAC to make an impairment determination as at a time fixed according to specified circumstances but not earlier than 18 months after the accident.

21 The plaintiff contends that s 46A(1A) was intended to fill the gap exposed by Locastro. The TAC denies this. It points out that some six years had passed between the judgment in Locastro and the relevant amending Act; and that there is no mention of Locastro in the extrinsic Parliamentary material. The explanatory memorandum for the Bill for the 2000 amending Act says only this about the relevant clause:

"[It] imposes a six-year time limit on applications for a determination of impairment in circumstances where it does not appear to the Commission that the person will have an entitlement to impairment benefits."

22 In the Minister's Second Reading Speech, the relevant measure was said to be one of several measures designed to improve and speed up the impairment determination process so as to reduce the costs of disputes and determine benefits more quickly. The relevant clause was said to -

"[impose] a six-year time limit after an accident to make an application for an impairment determination from the Commission."

23 By Act No. 94 of 2004, s 46A(1) was amended to remove the reference to the point of time 18 months after the accident and to replace it with a different timetable. Further, the reference to that point of time was deleted from s 46A(1A), and not replaced. Certain new ancillary provisions were inserted in s 46A. Among other things, the minimum wait for an assessment was reduced from 18 months to 3 months. The Minister's Second Reading Speech indicated that the general intention was to provide "affordable, faster and less complicated justice", together with increased impairment benefits. He said:

"The bill also contains other measures to improve the timing of assessment and payment of impairment benefits by making stabilisation the principal criterion for impairment determination, rather than requiring the TAC to defer assessment until at least 18 months after the injury, regardless of stabilization."

24 There is nothing in the explanatory memorandum for the 2004 Bill that throws further light on the present issues.

25 So far as the legislative history is concerned, the TAC places particular emphasis on the inclusion in s 46A(1A) as originally enacted of the reference to "18 months after a transport accident". The TAC says that this highlights an intention to link the TAC's role under s 46A(1A) with its role under s 46A(1), a link which, the TAC says, was not intended to be broken by the repeal of the words in question in 2004, the repeal being otherwise explicable, namely by the concurrent amendments made to s 46A(1).

26 Against this background the TAC puts forward, in effect, three broad arguments, as follows.

(1) (a) Only persons who have lodged a timely claim can be the subject of an impairment determination under s 46A(1): see Locastro.

(b) Only persons who have been considered by the TAC under s 46A(1) can make an application under s 46A(1A).

(c) Therefore, only persons who have lodged a timely claim can make an application under s 46A(1A).

(2) In any event, it is discernible from the policy of the Act as a whole, or alternatively it is implicit in the expression "a person injured as a result of a transport accident" in s 46A(1A) when read together with certain other provisions of the Act, that only persons who have lodged a timely claim can make an application under s 46A(1A).

(3) Alternatively, the plaintiff was not qualified under s 46A(1A) because the TAC's actual reason for not having made an impairment determination under s 46A(1) in her case was not the reason stated in s 46A(1A).

27 In summary, the TAC's arguments fail for the following main reasons. The TAC's first argument, comprising propositions (1)(a), (b) and (c), involves a logical slide or fallacy which springs from a failure to characterise appropriately the statutory reason why a person might not be the subject of an impairment determination under s 46A(1). Argument 2 is simply unmaintainable as a matter of statutory interpretation. Argument 3 must be rejected because it involves the same slide as is involved in argument 1, and because it offends certain fundamental legal principles to be mentioned.

Argument 1: the relationship between s 46A(1) and s 46A(1A) shows the need for a timely claim

28 The relevant condition stated in s 46A(1) is that the person "appears to the Commission to be or to be likely to be entitled to an impairment benefit". It is true that once any claim for an impairment benefit has become statute-barred the person cannot, and therefore will not, appear to the TAC to be or to be likely to be entitled to an impairment benefit. That was the situation in Locastro. But such a situation is merely the reason why, in a particular kind of case, the relevant condition will not have been met. The condition itself must be distinguished from the reason for non-fulfilment of it. In other kinds of cases, the condition may be unfulfilled for quite different reasons, eg because it appears to the TAC that the injury is too slight or because the person has simply not come to the TAC's attention at all. There is nothing to the contrary in Locastro.

29 It is true that s 46A(1) imposes an obligation on the TAC (quite independently of any request from the person concerned) to make an impairment determination in respect of a person injured in a transport accident who appears to the TAC to be or to be likely to be entitled to an impairment benefit; and that the TAC is obliged to do so as at a time worked out by reference to one or more of the following: the date of the accident, the age of the person, the date of first manifestation of the injury and the date of stabilisation. (The situation was comparable under the pre-2004 version of the legislation.) It might be thought that an obligation of that kind was intended to arise only in respect of individuals who are "in the system" at least to the extent that their cases have been brought to the attention of the TAC, and in time for the TAC to perform any obligation it may have under s 46A(1). However that may be, it does not necessarily follow that it is only where a timely formal claim has already been lodged that an obligation to make an impairment determination may arise under s 46A(1). As to timing, the obligation under s 46A(1) is to make a determination "as at", not "at" or "before" a specified time. This was also true in the year 2000 after s 46A(1A) was introduced, when the point of reference was 18 months after the accident. If need be, an "as at" determination can be validly made well after the specified point of time. In any event, s 68 has always provided for extensions of time which could authorise the lodgement of a claim well after the passing of one or more of the points of time now specified or previously specified in s 46A(1). Further, it seems to me that s 46A(1) can apply where the injured person has not yet lodged a claim at all but has somehow come to the TAC's attention and is expected to lodge a claim in due course. Such a person might well appear to the TAC, now, to be "likely" to be entitled to an impairment benefit within the meaning of s 46A(1). In such circumstances an obligation to make an impairment determination, now, may well arise, and in my view any later failure by the person to lodge a claim for an impairment benefit within time would not affect the validity (or efficacy for common law purposes) of the determination itself. On the other hand it is true to say that ultimately the TAC will not be obliged to make an impairment determination under s 46A(1) in relation to a person who is plainly out of time to lodge a claim. But the important matter is that in each case the TAC is required in the first instance, as a matter of law, to ask itself whether the person appears to be or to be likely to be entitled to an impairment benefit, not whether the person has lodged (or could lodge) a timely claim.

30 I turn to the TAC's proposition 1(b), ie that only persons who have been considered by the TAC under s 46A(1) can make an application under s 46A(1A). In its own terms it is substantially correct, in my view. The plaintiff submits that s 46A(1A) is simply the converse of s 46A(1). She points out that it applies where the injured person "does not appear" to the TAC to be or to be likely to be entitled to an impairment benefit, and she says that this is a reference to a situation of mere "non-appearance" or the absence of appearance (of entitlement), as distinct from a situation where it actually appears to the TAC that the person is not (or is not likely to be) entitled to an impairment benefit. However I would not read s 46A(1A) in that way. I think that s 46A(1A) is referring to situations where the TAC has considered or is considering a case and has formed or forms the view that the person is neither entitled nor likely to be entitled to an impairment benefit. I say so because of the primacy of the need to consider context in modern statutory interpretation (as the TAC emphasises in its submissions[6]), because of the similarity of the relevant language in s 46A(1A) to that of the corresponding part of s 46A(1), because of the legislative history and because some work must be given to the words "If" and "because" in s 46A(1A).

31 On the other hand, s 46A(1A) is not quite so closely tied to the historical past as the TAC would have it. Even in its original form, the condition of entitlement set out in s 46A(1A) ("If the Commission has not made a determination ... as at 18 months after a transport accident because it does not appear to the Commission that the person is or is likely to be entitled to an impairment benefit ...) was expressed in the continuous present tense, and it still is. The person is given a relatively lengthy period to apply - 6 years after the first manifestation of injury (being a period which also broadly corresponds with the general common law limitation period that was in force at the time when s 46A(1A) was introduced). The drafting of s 46A(1A) is not elegant, but the substance of it is that a person injured as a result of a transport accident may apply for an impairment determination at any time within 6 years after the injury first manifests itself if during that 6 year period the TAC has not made an impairment determination under s 46A(1), provided that the reason why the TAC has not done so is because the person does not appear to the TAC to be or to be likely to be entitled to an impairment benefit. As long as the period of 6 years has not expired, there need be no strictness about the order of events. Even if the person had not previously come to the TAC's attention, the very making of the application could effectively require the TAC to ask itself the relevant questions under both s 46A(1) and s 46A(1A).

32 The TAC's first argument breaks down at proposition 1(c) because of a slide as between propositions 1(a) and 1(b). In truth, the field of persons referred to in proposition 1(a) is not the same as the field referred to in 1(b). The former is merely a subset of the latter. The TAC is required to ask itself the "impairment benefit entitlement question" under s 46A(1) in respect of every person who otherwise qualifies for attention under s 46A(1), not merely those persons in relation to whom, as it transpires, an impairment determination is required to be made under s 46A(1). Just as in the case of s 46A(1), the relevant condition in s 46A(1A) is expressed in terms of entitlement or likely entitlement to an impairment benefit, not in terms of the existence or non-existence of a timely claim for statutory compensation. So I do not accept the TAC's first argument.

Argument 2: A requirement for a timely claim is implicit in s 46A(1A) in any event

33 I turn to what I have called the TAC's argument 2, namely that even if argument 1 fails, it should be accepted that a requirement for a timely claim is implicit in s 46A(1A), either by reference to the provisions and the policy of the Act as a whole or alternatively by reference to a particular expression in s 46A(1A) read together with certain other specific provisions of the Act to which I will come.

34 The more general proposition was not articulated in the TAC's written outline of argument at all. It was put forward in oral submissions, but only briefly. Senior Counsel called in aid the policy and purpose of the claims procedure laid down by the Act. He submitted that the procedure was laid down for the proper administration of the transport accident scheme; that there was "every reason" why Parliament should have enacted a scheme which called for claims to be made within a certain time; and that the policy should be seen to extend not only to statutory benefits but also to impairment determinations under s 46A.[7]

35 Senior counsel for the TAC was very wary of being seen to acknowledge that additional words needed be read into s 46A(1A) to effectuate the stated purpose or policy of the claims procedure. However he did acknowledge that the suggested purpose or policy was not consistently reflected throughout the Act. Thus he conceded that the TAC's power to make impairment determinations in the several kinds of cases provided for by s 47(7) of the Act was not circumscribed by any requirement for a claim, timely or otherwise. Yet he submitted that a timely claim was always essential under s 46A(1A), even if the person concerned was in one of the categories of case specifically excluded by the Act from entitlement to statutory compensation. Of course s 46A(1A) itself is directed to the cases of persons who[8], at least in the TAC's view, are not entitled or likely to be entitled to an impairment benefit. There is a long established legal maxim applicable both to the common law and to statutory interpretation, "Lex non praecipit inutilia", which may be translated as "The law commands not useless things".[9] Another form of the maxim is "Lex neminem cogit ad vana seu inutilia", meaning "The law will not force anyone to do a thing vain and fruitless".[10] It may be thought to be useless, vain or fruitless to require a person to make a claim for an impairment benefit if the person does not want it or is not entitled to it. On the other hand, it is true that a single claim can cover every kind of benefit under the Act, including mere medical benefits. And it is true also that, even in the case of a person who does not want any statutory compensation at all, there could be some public benefit in requiring the person to lodge a timely claim in order to forewarn the TAC of the possibility that an impairment determination may be sought at a later stage for common law purposes, thereby facilitating investigation by the TAC into, for example, matters relevant to the question whether the person was injured as a result of a transport accident. However, in my view, for the reasons which follow, those considerations are not sufficient to justify the general implication suggested by the TAC.

36 It seems to me that, contrary to its counsel's protestations, the TAC is really inviting the Court to read words into s 46A(1A) (and into the Act generally) that are not there, and to do so without sufficient reason. In 1910, in Thompson v Goold & Co[11], Lord Mersey said:

"It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do."

37 Thompson v Goold & Co was a workers' compensation case. A worker lost an eye at work. He made a verbal claim on his employers for compensation, but without stating the precise sum which he claimed in money or otherwise specifically fixing it. Under the legislation a verbal claim was sufficient, but the employers asserted that it was not a valid claim without a statement of the amount claimed. They said that there were reasons of public policy to do with encouraging the prompt settlement of claims that supported their assertion. The Act simply said that "the claim for compensation" must be made within six months of the accident. Reversing the Court of Appeal, the House of Lords held, unanimously, that there could be a "claim for compensation" without a specification of the amount claimed. It was in that context, a context not dissimilar from the present, that Lord Mersey's well known words were spoken. Stephen J quoted and applied Lord Mersey's statement in Western Australia v Commonwealth[12]. This was noted recently by Chernov JA (with whom Warren CJ and Maxwell P agreed) in Footscray City College v Ruzicka[13], an accident compensation case, in which his Honour followed suit. In R v Young[14] Spigelman CJ emphasised that, constitutionally, it is never appropriate for a court to introduce words into an Act of Parliament or to amend legislation; and that the court is limited to construing the words actually used, though sometimes it is necessary to give the words an effect as if they contained extra words. In so saying, his Honour referred with apparent approval to Lord Mersey's statement, and commented[15]:

"The process by which words omitted by inadvertence on the part of the draftsperson may be supplied by the Court must remain capable of characterisation as a process of construction of the words actually used."

38 In my view there is no legitimate process of construction of the words actually used in the Act as a whole or in s 46A(1A) in particular by which words requiring the making of a timely claim as a condition of entitlement to apply under s 46A(1A) could be supplied by the Court. It cannot be done by reading down the words of s 46A(1A) or by giving those words an ambulatory operation or otherwise.[16]

39 In Victorian Workcover Authority v Victoria[17] Callaway JA said:

"We cannot rewrite statutes where the words are unambiguous and the only reason for intervention would be a reasonable suspicion that Parliamentary counsel, or those instructing Parliamentary counsel, made a mistake and that the result gives a worker a windfall again."

The situation is a fortiori in a case, like this one, where there is little or no indication of a mistake and no "windfall gain" is involved.

40 The present situation does not satisfy the conditions which, according to Lord Diplock in Jones v Wrotham Park Estates[18] and McHugh J in Newcastle City Council v GIO General Ltd[19], must be met before a court can read words into legislation, namely[20]:

"First, the court must know the mischief with which the statute was dealing. Second, the court must be satisfied that by inadvertence Parliament had overlooked an eventuality which must be dealt with if the purpose of the legislation is to be achieved. Third, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect."

41 As to mischief, the TAC submitted that the amendment which introduced s 46A(1A) was not designed to deal with the problem that arose in Locastro. Asked specifically for his submission as to what the perceived mischief was, Senior Counsel for the TAC simply said[21]:

"It's put forward the possibility that a particular class of persons might be able to, over and above the specified time limited period of three years, up to six years ask for a determination of impairment. It's some distance away from the problem looked at in Locastro."

That answer is not supported either by the language of the relevant provisions or by the extrinsic material. The introduction of s 46A(1A) did not merely extend to 6 years the period during which an impairment determination might be made. Rather, it introduced a completely new basis for the making of an impairment determination, a basis involving a situation in which the person concerned "does not appear" to the TAC to be or to be likely to be entitled to an impairment benefit, as distinct from a situation in which the person concerned does appear to the TAC to be or to be likely to be entitled to an impairment benefit. Those two situations are the very opposite of each other. I agree with the plaintiff that in effect, if not in terms, the introduction of s 46A(1A) appears to be intended to cover the gap exposed by Locastro.

42 I see nothing in the contrast between the subjective language of ss 46A(1) and (1A) ("appears to the Commission"/"does not appear to the Commission") and the objective language of s 47(7) ("is or may be entitled to compensation under this Act") - a contrast on which the TAC relied - to indicate that the suggested condition (which would in any event be a condition of objective fact) should be perceived within s 46A(1A).

43 The claims procedure provisions themselves (ss 67 and 68) are not strict and absolute in their requirements (see ss 67(2), 68(2) and (3)). Moreover, they are framed in terms of a "claim for compensation under this Act", not in terms of a claim for anything else, much less in terms of an "application" for an impairment determination (which is the language used in s 46A(1A)).

44 The extrinsic materials are not very enlightening. If anything, they run counter to the TAC's argument. The generality of the language used in the explanatory memorandum and in the Minister's second reading speech to describe the effect of the clause which became s 46A(1A) is suggestive of a broad ameliorative purpose, not one confined by an unstated requirement for a timely claim for statutory compensation.

45 I cannot regard any statutory policy in favour of the lodgement of claims for statutory compensation as being so important, so pervasive or so central to the purposes of the Act as to demonstrate that the condition suggested by the TAC should be read into s 46A(1A) in order to ensure that the purpose of the Act, or the purpose of s 46A(1A), is achieved. I am not satisfied that the Parliament "by inadvertence" overlooked any relevant eventuality. Whether the Court could state "with certainty" what words Parliament would have used to overcome the alleged omission if its attention had been drawn to it need not be decided. Certainly, the matters relied on by the TAC with which I have so far dealt do not demonstrate a "clear necessity"[22] for reading into s 46A(1A) the suggested condition.

46 There is no need to determine whether the Act in general, or any aspect of it, should be regarded as "beneficial" legislation for interpretation purposes. The TAC drew to my attention the following passage from the judgment of Winneke P (with whom Batt JA and Warren AJA agreed) in Transport Accident Commission v Lincoln[23]:

"It is true that, over the years, courts which have been called upon to interpret compensation statutes have repeatedly said that the underlying scheme of those Acts is 'beneficial' and ought to be interpreted broadly in favour of the applicant. In this State those words are achieving a 'hollow ring' because one of the primary objects of the present legislation is to 'reduce the cost to the Victorian community of compensation for transport accidents."[24]

I note the following comment by Judge Bowman in Robb v Transport Accident Commission[25]:

"The observations of Winneke P in Lincoln have been brought to my attention and it may be that words such as 'beneficial' in relation to legislation such as this now have a 'hollow ring' about them. However, with respect, I do not interpret the words of His Honour as meaning that such a general approach to the interpretation of compensation statutes no longer exists or has forever departed. I understand him to be saying that, in this state, such an approach is no longer in the robust condition that it once was. It m ay also be that an approach based upon the beneficial interpretation of compensation statutes is becoming an argument of last resort.

I note also, as did Judge Bowman, that the objects of the Act include not only the object referred to in Lincoln but also the object set out in s 8(b), namely: "to provide, in the most socially and economically appropriate manner, suitable and just compensation in respect of persons injured ... as a result of transport accidents". On the other hand it may be that neither the passage from Lincoln nor the comment in Robb is particularly relevant here because those cases were concerned more with statutory benefits than with the provisions of the Act which restrict or otherwise affect common law proceedings. In any event, the plaintiff did not argue that the Act or any relevant part of it was "beneficial" legislation, and so I do not proceed on any such basis.

47 The TAC's more specific, alternative submission in support of the existence of the implied condition was set out elaborately in its written outline of argument, but was merely incorporated by reference in oral submissions. It was submitted that the scheme of the Act, and in particular the combined operation of ss 35(1), 68 and 70, shows that a timely claim must be lodged and accepted before it can be said, even, that the person is "a person injured as a result of a transport accident" within the meaning of s 46A(1A) (or, presumably, within the meaning of the corresponding expression in s 46A(1)). According to the TAC, the legislative scheme calls for a determination of whether the person in question has been "injured as a result of a transport accident" at the stage of liability on a claim being accepted or rejected by the TAC pursuant to s 70 of the Act. No doubt that is the usual course in practice. However in my opinion the Act does not contain an implied requirement that this must occur before any application under s 46A(1A) can be made or accepted. It is true, as the TAC points out, that the expression "a person injured as a result of a transport accident" which occurs in s 46A(1A) occurs also in identical or nearly identical form in ss 35(1) and 68 of the Act. Section 35, which falls within Part 3 of the Act, is a basic provision relating to entitlement to compensation. So far as relevant, s 35(1) provides that "[a] person who is injured as a result of a transport accident is entitled to compensation in accordance with this Act if [the accident has a specified connection with Victoria]".[26] Section 68 provides that "a person who is injured ... as a result of a transport accident to which Part 3 applies may make a claim for compensation under that Part within [specified time limits]." The TAC's argument seeks to read back the respective objects of the sentences quoted from s 35(1) and s 68 into the subject of the sentence in each case, as though ss 35(1) and 68 were definition sections, and it then seeks to combine this with concepts drawn from s 70, with the remarkable result that the expression "a person injured as a result of a transport accident", where appearing in s 46A(1A), is to be understood as referring to a person who, having been injured as a result of a transport accident, has made a timely claim for compensation upon which the TAC has accepted liability and who is entitled to compensation of some kind or another, even if only medical benefits. In this regard, also, the TAC emphasises that the process of statutory construction must begin by considering "context" in its widest sense, and that the Court must adopt an approach which is consistent with the language and purpose of all the provisions of the Act and the substantive operation of the Act as a whole.[27]

48 Even giving the fullest scope to modern principles of statutory construction, the TAC's interpretation of the phrase "a person [who is] injured as a result of a transport accident" as contained in the Act (including in s 46A(1A)) is impossible. Among other things, it would involve reading ss 35 and 68 as definition sections when they are plainly not; and, moreover, it would involve contrariety to numerous other provisions of the Act, such as, for example, the various provisions which exclude "a person [who is] injured as a result of a transport accident" from entitlement to compensation in particular defined circumstances, including where the person is entitled to compensation under other legislation (see ss 37, 38, 38A), or where no report to the police under s 61 was made (see s 39), or where intoxicating liquor was involved (see s 40) or where motor sport was involved (s 41). Further, there would be a conflict with s 47(7) which empowers the TAC, for common law purposes, "at any time" to determine the degree of impairment of "a person who is injured as a result of a transport accident" and who, among other things, is or (merely) "may be" entitled to compensation under the Act. I cannot accept that the construction advanced by the TAC should be given to the expression in question where it appears in s 46A(1A) (or, for that matter, when it appears in s 46A(1)) when so obviously it cannot bear that meaning in any of the other provisions of the Act to which I have referred or, as far as I can tell, in any other provision of the Act at all. In Transport Accident Commission v Lanson[28], in the context of this very Act and in words which I would apply mutatis mutandis to the TAC's present submission, Phillips JA said:

"... the commission is seeking to have us rewrite the section significantly; for although dressed up as an argument about the meaning of the word 'injury', the submission was in truth that, by judicial decision, we should add further words to subs (1) - say, 'or death' after 'injury'. It has been said often enough that it is 'a strong thing to read into an Act of Parliament words which are not there' and, while no doubt it can nowadays be done in a proper case (as the court acknowledged, I think, in Cooper Brookes), it is a step for which there is no sufficient justification in this instance."

49 It follows that "the deferred questions" remain to be dealt with by the parties in due course. There is no need for me to decide the legal question whether it is ultimately a matter for the TAC to determine whether a particular person is "a person injured as a result of a transport accident" for the purposes of s 46A(1A) of the Act or whether, on the other hand, such an issue would ultimately fall to be determined objectively, ie by a court, in the event of a dispute. In other words, there is presently no need to decide whether or not the deferred questions are questions of jurisdictional fact.[29] No doubt, if the case is to be remitted to the TAC for reconsideration, it will be appropriate for the TAC at least to form an opinion on the questions, as part of the reconsideration. However the statutory expression as a whole certainly does not have the extended meaning that the TAC seeks to attribute to it in the submission to which I have just referred.

The TAC's third argument: reliance on its own error

50 As mentioned above, the TAC submitted in the alternative, that, rightly or wrongly, the reason it actually had for not making an impairment determination under s 46A(1) in the plaintiff's case was that she had not lodged a timely claim. For the purposes of the present alternative argument, this reason was to be distinguished (the TAC said) from the (proper) statutory reason under s 46A(1), which reason is in turn referred to in s 46A(1A). Therefore, the TAC argued, the plaintiff was not entitled to make an application under s 46A(1A).

51 On my interpretation of s 46A(1), and putting aside the question whether the plaintiff was a person injured in a transport accident, the only reason which the TAC could have had in law for not making an impairment determination under s 46A(1) in the plaintiff's case was that she did not appear to the Commission to be or to be likely to be entitled to an impairment benefit. The TAC, as a statutory body, cannot be heard to characterise its own reason in any other way. The statute simply takes effect. The position is similar to that which applied in relation to the identification of the relevant reason for the decision of the Refugee Review Tribunal in SZBYR v Minister for Immigration and Citizenship, in which Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ said[30]:

"The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act."

52 In Wang v Minister for Immigration and Multicultural Affairs[31], Merkel J quoted and applied the following passage from Bennion on Statutory Interpretation (2nd ed, 1992) which continues to appear in the current (4th) edition:

"A construction will not be allowed which would enable persons charged with a statutory power or function to act in such a way as to truncate or otherwise modify what the legislation intended."

It seems to me that that principle would be offended by adopting a construction of s 46A(1) or of s 46A(1A) which would enable the TAC to deny a statutory right to a person by its own misunderstanding of the statute or by its own mischaracterisation of what it had done.[32] This would be to elevate form over substance in a wholly unacceptable way. The description "Kafkaesque", which Merkel J thought appropriate in relation to the Minister's submission in Wang[33], is equally appropriate to the TAC's third argument.

53 The argument also runs counter to "the very old principle laid down by Lord Coke (Co. Litt 206b) that a man shall not be allowed to take advantage of a condition which he himself brought about".[34]

54 To the extent that the doctrines of equity may be applicable, by analogy or otherwise, to the interpretation of statutes[35], or to the exercise of statutory powers[36], the maxim "Equity considers done what ought to be done"[37] may well have a resonance here, but it is unnecessary to express any concluded view on that matter.

Conclusion and orders in the judicial review proceeding

56 For those reasons, I will make orders in the judicial review proceeding to the following effect, subject to any submissions by counsel as to form:

(a) The decision of the defendant, the Transport Accident Commission, conveyed by its letter to the plaintiff dated 26 February 2005, being the decision to the effect that it was not able to consider the plaintiff's application under s 46A(1A) of the Transport Accident Act 1986 for a determination of her degree of impairment, be quashed.

(b) The plaintiff's application to the defendant pursuant to s 46A(1A) of the Transport Accident Act 1986 for a determination of her degree of impairment be reconsidered and redetermined by the defendant in accordance with the reasons for decision of this Court, and in particular on the basis that the plaintiff's application satisfies the requirements of s 46A(1A), subject only to the outstanding questions of fact involved in the question whether the plaintiff is "a person injured as a result of a transport accident".

57 The plaintiff did not argue the appeal with as much vigour as she did the proceeding for judicial review. As she submitted, the "point of substance" was that involved in the judicial review proceeding. Her success in that proceeding means that the issues in the appeal have become moot. However, it is conceivable that the plaintiff may wish to seek a merits review by the VCAT of the decision to be made by the TAC on remittal (in the event that the TAC decides any of the deferred questions adversely to her). For that reason, and in case I am wrong about the judicial review proceeding, and because of the possible impact on questions of costs, and because I have heard fairly extensive argument, it seems desirable to deal with the merits of the appeal.

58 The VCAT ruled that, because of the provisions of s 63 of the Act, it did not have jurisdiction to entertain the application which the plaintiff had purported to bring under s 77 of the Act for review of the decision of the TAC made on 26 February 2005.

59 The plaintiff submits that, notwithstanding s 63(1), s 77(1) did supply the requisite jurisdiction. Section 77 occurs within Division 3 ("Reviews") of Part 4 ("Claims Procedure") of the Act. Sub-section 77(1) reads:

"(1) A person whose interests are affected by a decision of the Commission may, within 12 months of becoming aware of the decision, apply to the Tribunal for review of the decision."

"(1) This Part applies to and with respect to claims for compensation under Part 3 or Part 10".

A previous form of s 77(1) was considered by the Appeal Division of the Supreme Court in Transport Accident Commission v Clarke and Smith[38]. Originally the subsection referred to a person "who is aggrieved" rather than a person "whose interests are affected" by a decision of the TAC, but it is not suggested that this change has any significance for present purposes. The Appeal Division said (as to s 77(1)):

"This is not so general as it seems. Section 77 appears in Pt4 which, by s63(1), 'applies to and with respect to claims for compensation under Pt3 or Pt10'. Pt3 deals with claims arising out of a transport accident occurring on or after the commencement of s34 of the Act and Pt10 with claims for compensation arising out of an accident that occurred before the commencement of s34.

The difficulty confronting the applicants is that neither of them has made a claim for compensation and, indeed, neither of them is entitled to compensation under the Act by virtue of s38(2). In these circumstances, the application for the determination of the commission as to degree of impairment, whilst obviously not itself a claim for compensation under Pt3 or Pt10, cannot be said either to be 'with respect to' such a claim for compensation (within the meaning of s63(1)).

Therefore, s77 does not purport to give to the applicants any relevant right of review. In our view, the section confers no right to have the tribunal review the determination of the commission about the degree of impairment, when that determination has been sought under s47(7)(b) by one who is not entitled to compensation under the Transport Accident Act and solely for the purpose of seeking to recover common law damages."[39]

60 The plaintiff submits that Clarke and Smith does not stand in her way. She says that Clarke and Smith does not decide that where an out of time claim for compensation has been made by a person otherwise entitled to claim then there is no right of review by the Tribunal of a decision not to make an assessment of the degree of impairment of the claimant, that decision having been made on the basis that there is no entitlement to an assessment because the claim was out of time. She points out that in Clarke and Smith there had been no claim, and the applicants had never had an entitlement to compensation under the Act.

61 However the essence of what was established in Clarke and Smith is that the person concerned must show that the relevant application to the TAC was either a claim for compensation under Part 3 or was "with respect to" such a claim, or else that the decision of the TAC sought to be reviewed was a decision "with respect to" a claim for compensation under Part 3.

62 The plaintiff submits that the decision of the TAC in the present case was "with respect to" her (out of time) claim for compensation, as there was a sufficient nexus between the claim and the decision. In her written summary of argument, she posits the nexus as follows (the emphases are mine):

" ... consequent upon the Plaintiff having lodged her claim, the Defendant was obliged under s 46A(1) to make an impairment assessment if the Plaintiff was or might be entitled to an impairment benefit. A person whose claim for compensation was lodged out of time is a person who is not so entitled, within the meaning of s 46A(1), see [Locastro at 297-298]. Section 46A(1A), which was enacted after Locastro, dealt with this situation. In consequence, the reason for the plaintiff not being entitled to compensation (including an impairment benefit) was the foundation of her entitlement to apply for an assessment of her degree of impairment under s 46A(1A). Thus, the Applicant's entitlement to apply under s 46A(1A) was predicated on a state of affairs which arose in consequence of her claim for compensation, and the decision under s 46A(1A) was "in respect of" [sic] that claim. See Smith v Allan[40] and Melnik v Melnik[41] for relevant principles of statutory interpretation. Smith v Allan is especially relevant, and much of what is said in that case can be applied to the appeal provisions of the Act."

63 It is true that in Smith v Allan[42] Kirby P (with whom Clarke JA and Samuels A-JA agreed) said, in relation to a statutory provision giving a public employment appeals tribunal an additional power to "make such other decision with respect to the appeal as it thinks fit", that the words "with respect to" ... are words "of the widest possible connection" and that they should not be narrowly construed. The Court held that the provision authorised the appellate tribunal to make a decision providing for the deployment of the relevant employee pending the making of a lawful decision by the primary decision-maker upon remittal. In Melnik v Melnik[43], the Full Court of the Federal Court held that proceedings which had been commenced against a person in the Family Court subsequent to the bankruptcy of the person, being proceedings to have the person imprisoned for contravention of an order to pay money to the person's former spouse, were proceedings "in respect of" the "non-payment of a provable debt" within the meaning of s 60(1)(b)(i) of the Bankruptcy Act 1966. The Full Court referred to what Beaumont J had said in an earlier case[44] of the phrase "in respect of":

"... It has been said that the phrase has the 'widest possible meaning of an expression intended to convey some connection or relation between the two subject matters to which the words refer' (per Mann CJ in Trustees Executors and Agency Co Ltd v Reilly [1941] VicLawRp 22; [1941] VLR 110 at 111; and see State Government Insurance v Rees (1979) 1404 CLR 549 at 561).

64 Generally speaking, the courts have not distinguished between the expressions "in respect of" and "with respect to".[45] However, as Pearce and Geddes note[46], Deane, Dawson and Toohey JJ in Workers Compensation Board of Queensland v Technical Products Pty Ltd[47] described as "going somewhat too far" statements like that in Trustees Executors and Agency Co v Reilly[48] to the effect that the words have "the widest possible meaning of any expression intended to convey some connection or relation between the two subject matters to which they refer". Deane, Dawson and Toohey JJ continued[49]:

"The phrase gathers meaning from the context in which it appears and it is that context which will determine the matters to which it extends."

65 I do not accept the plaintiff's submission that there was a sufficient nexus between, on the one hand, her out-of-time claim and, on the other, either her application to the TAC under s 46A(1A) or the TAC's decision thereon. It seems to me that the combined effect of ss 63 and 77(1) of the Act, as interpreted in Clarke and Smith (by which I am, of course, bound), is that the VCAT will not have jurisdiction under s 77 unless the subject matter of the application for review is, in substance, a complaint about a denial or rejection of a claim for statutory compensation, which is not the case here. I think that this is confirmed by s 47(7B) which was inserted after Clarke and Smith, apparently as a specific, limited response to that decision. Sub-section 47(7B) gives a special jurisdiction to VCAT to review decisions made by the TAC (for common law purposes) under s 47(7).

66 In any event, it seems to me that any link between the plaintiff's out-of-time claim and the subject matter of her application to the TAC was so tenuous that it cannot be said that her application was "with respect to" that claim. The abovementioned attempt in the plaintiff's written outline to link the two is unconvincing, and all the more so because it runs counter to the way in which the plaintiff argued her case in the judicial review proceeding. For example, in the judicial review proceeding the plaintiff argued, correctly in my opinion, that any obligation on the TAC under s 46A(1) to make an impairment assessment would not have been consequent (in a statutory sense) on her having lodged her claim, but rather on her appearing to be or to be likely to be entitled to an impairment benefit. Similarly the reason for the plaintiff not being entitled to compensation was not the foundation of her entitlement to apply under s 46A(1A). The foundation of her entitlement to apply under s 46A(1A) was the mere fact that it did not appear that she was entitled to an impairment benefit, not the particular reason for that fact. In truth, the plaintiff's application under s 46A(1A) was not with respect to her (out-of-time) claim nor even with respect to its attribute of being out of time. So far as her application under s 46A(1A) was concerned, her position was no different from what it would have been had she never lodged or sought to lodge any claim at all.

67 In her written submissions the plaintiff advanced one further set of arguments, essentially as an alternative. To deal with them it is necessary to set out ss 71(1) and (1A) and s 74 of the Act, to wit:

"71(1) In order to determine its liability under Part 3 or Division 1 of Part 10, the Commission may require a person who was injured as a result of a transport accident and makes a claim for, or receives compensation under this Part or that Division, to submit from time to time for examination by one or more medical service providers nominated by the Commission.

(1A) Sub-section (1) also applies to a person if the Commission is required to make a determination of the person's degree of impairment as a result of a transport accident.

(1) If the Commission becomes aware that it is making payments of compensation in respect of a transport accident to a person who is not and never has been entitled to payments in respect of that accident, the Commission must give notice to the person to that effect and cease the payments."

"It is submitted that s 63 cannot have the effect that all of the provisions of Part 4 are limited to matters which are 'to and with respect to claims for compensation'. Nor can it have the effect that all of the provisions of Part 4 are limited to matters where there is an entitlement to compensation. Clarke and Smith does not decide that Part 4 is so limited, and further, s.71(1A) and s.74(1) are provisions within Part 4 which apply where there is no entitlement to compensation, and in the case of s.74(1A) [sic, scil s 71(1A)], where there is and could not be a claim under the Act. Consequently, s.63 cannot any longer be regarded as applying only where there is an entitlement to compensation, or a claim for compensation.

Section 71(1A), passed since Clarke and Smith was decided, is important for three reasons. The first is that it is a provision which recognises that the Commission may be required to make an assessment of a person's degree of impairment in a case where there has not been a claim for compensation. The second reason is that because s.71 is in Part 4, such an assessment by the Commission must be subject to review by VCAT, as the review provision is also in Part 4. The third reason is that section 63(1) can no longer be regarded as if the word 'only' was inserted after the words 'The Part applies'."

69 I would agree with the plaintiff that s 63 cannot have the effect that all of the provisions of Part 4 are limited to matters where there is an entitlement to compensation. The very purpose of the procedures for lodging claims and for making decisions on them is to identify and reject bad claims (and to meet good claims). If and to the extent that the TAC or the VCAT took a contrary view, they were in error. But the plaintiff's lack of an entitlement to compensation is not what is standing in her way for present purposes. Unless Clarke and Smith is no longer applicable, the plaintiff needs to show that the proceeding before the VCAT was "with respect to a" claim for compensation, and I have already held that she cannot do so.

70 In attempting to show that Clarke and Smith should indeed be regarded as no longer applicable, the plaintiff relies entirely on s 71(1A), a provision which was introduced in 2004, some 10 years after Clarke and Smith was decided. There is nothing whatever to indicate that the introduction of s 71(1A) sprang from an intention to alter the law as laid down in Clarke and Smith. Moreover, it is far from clear that s 71(1A) could ever apply where there is not and could not be a claim under the Act. The plaintiff's assertion to that effect begs the question whether s 63 would not apply equally to s 71(1A), just as it was held in Clarke and Smith that s 63 applied to s 77 and to every other provision then in Part 4. Even if s 71(1A) ought to be read as being outside the operation of s63, that would be an exceptional thing and would provide no or no sufficient reason to conclude that any other provision of Part 4, including s 77, should now likewise be read as being beyond the reach of s 63.

72 I will hear counsel as to costs in relation to both matters.

[1] See ss 93(1), (2), (3), (4), (6) and (17) of the Act.

[2] [1995] VicRp 21; [1995] 1 VR 289.

[3] [1995] VicRp 21; [1995] 1 VR 289.

[4] [1995] VicRp 21; [1995] 1 VR 289 at 293.

[5] [1995] VicRp 21; [1995] 1 VR 289 at 297-298.

[6] The TAC cites the following cases: Metropolitan Gas Co v Federated Gas Employees' Industrial Union [1925] HCA 5; (1925) 35 CLR 449 per Isaacs and Rich JJ at 455; Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165, per Mason P at 172; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85 at 112 (McHugh J); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 381-2, [69]- [71]; Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; (2004) 218 CLR 273 at [11]; Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58; (2005) 224 CLR 193 at 230 [124] per McHugh J; Chang v Laidley Shire Council [2007] HCA 37 at [42]- [44], [85] per Kirby J.

[7] See transcript of argument, esp at 51.

[8] On my reading of s 46A(1A), as indicated above.

[9] See Wimalaratne v Minister for Immigration and Multicultural Affairs [2000] FCA 964 at [13] per Katz J, quoting Coke's Commentary on Littleton, 1628, fol 127b.

[10] See Wimalaratne, supra at [16], quoting Broome's Legal Maxims, 10th ed, at p 162.

[11] [1910] AC 409 at 420. See, generally, Pearce and Geddes, Statutory Interpretation in Australia, 6th edition, 2006 [2.28]-[2.30], and see B.P. Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 280 (Privy Council).

[12] [1975] HCA 46; (1975) 134 CLR 201, 251.

[13] [2007] VSCA 136; (2007) 16 VR 498 at 501 [7].

[14] [1999] NSWCCA 166; (1999) 46 NSWLR 681 at [1]- [37].

[15] At [8]. Cf Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Limited [2008] HCA 9 at [49] per Kirby J (dissenting).

[16] Cf R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681 at [25]- [32].

[17] [2005] VSCA 261 at [4].

[18] [1980] AC 74 at 105.

[19] [1997] HCA 53; [1997] 191 CLR 85 at 113.

[20] Ibid. See, further, R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681 at [9]; Victorian Workcover Authority v Wilson [2004] VSCA 161; (2004) 10 VR 298 at 306 [26]- [27]; Victorian Workcover Authority v Vitoratos [2005] VSCA 261 at [4]- [5], [22]-[23], [37]-[42].

[22] Cf Thompson v Goold & Co, loc. cit.

[23] [2003] VSCA 67; (2003) 6 VR 199 at 208.

[25] [2004] VCAT 983 at [66].

[26] It may be noted that the payment of the compensation to which such a person is "entitled" is nowhere expressly stated to be subject to the due lodgement of a claim, but it is common ground that it is implicit in the Act that no statutory compensation can be paid unless and until a claim is lodged.

[28] [2001] VSCA 84; [2001] 3 VR 250 at 261-262 [29] per Phillips JA with whom Winneke P and Charles JA relevantly agreed. Footnote omitted.

[29] Compare Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135; Kuar v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 927; (1994) 48 FCR 343 at 348.

[30] [2007] HCA 26 at [17].

[31] [1997] FCA 70; (1997) 71 FCR 386 at 394.

[32] It also "calls to mind Lord Atkin's scornful reference to Lewis Carroll in Liversidge v Anderson [1941] UKHL 1; [1942] AC 206 at 245 ..." per Burchett J in Sook Rye Son v Minister for Immigration and Multicultural Affairs [1999] FCA 7; (1999) 161 ALR 612 at 617 [9].

[33] [1997] FCA 70; (1997) 71 FCR 386 at 388. Merkel J referred to Kafka's well known parable of the doorkeeper to the Law.

[34] New Zealand Shipping Company v Societe des Ateliers et Chartiers de France (1919) AC 1 at 8 per Lord Finlay, quoted by Davies J in Narish Holdings Pty Ltd v Commonwealth, Federal Court of Australia, 7 December 1988, unreported, BC8803101, and see Narish at pp 5-8 of 12 of the Lexis Nexis print. See also Thompson v Groote Eylandt Mining Co Ltd [2003] NTCA 5 at [31]- [34].

[35] See Minister for Lands and Forests v McPherson (1991) 22 NSWLR 687; Pearce and Geddes, Statutory Interpretation in Australia, 6th ed 2006 at [5.25].

[36] In R v Tower Hamlets London Borough Council; Ex parte Chetnik Developments Ltd [1988] AC 858 at 872, Lord Bridge said: "Statutory power conferred for public purposes is conferred as it were upon trust, not absolutely - that is to say - it can validly be used only in the right and proper way which Parliament when conferring it is presumed to have intended". See Aronson, Dyer and Groves, Judicial Review of Administrative Action, 3rd edition, 2004 at 86.

[37] See Meagher, Heydon and Leeming, Meagher, Gummow and Lehane's Equity, Doctrines and Remedies, 4th edition, 2002 at [3-205].

[38] [1994] VicRp 7; [1994] 1 VR 117.

[39] [1994] VicRp 7; [1994] 1 VR 117 at 119-120.

[40] (1993) 31 NSWLR 52.

[41] [2005] FCAFC 160; (2005) 144 FCR 141.

[42] (1993) 31 NSWLR 52 at 61.

[43] [2005] FCAFC 160; (2005) 144 FCR 141 at 147-148.

[44] Re Sutherland-Cropper (1985) 11 FCR 156 at 161.

[45] See Pearce and Geddes, Statutory Interpretation in Australia, 6th edition, at [12.7].

[47] (1988) 165 CLR 642 at 653.

[48] [1941] VicLawRp 22; [1941] VLR 110 at 111. (The statement is referred to in Melnik v Melnik in the passage set out above).

[49] See, further, Pearce and Geddes, loc. cit.