Taylor v Centennial Newstan Pty Ltd

Background facts 10 During the course of his employment as a coal miner, the appellant had suffered a number of injuries including injuries suffered whilst employed by Elcom Collieries and a back injury sustained on 27 April 2004 whilst employed by the respondent at its Newstan Colliery. He commenced proceedings against both employers for permanent loss compensation, but then changed course. It was that change of course which has given rise to the issue agitated on the appeal. 11 The appellant first filed proceedings on 14 March 2007, when he filed a statement of claim in the District Court Coal Miners' Workers Compensation List (the Compensation List proceedings) against Elcom Collieries and the respondent, claiming permanent loss compensation under the Workers Compensation Act 1987 in respect of his injuries, including the 27 April 2004 injury (Orange book 3, Red book 60). The appellant filed a notice of discontinuance of those proceedings on 31 May 2007. An order for discontinuance was made on 15 June (Red Book 60). Meanwhile, on 24 April 2007, the appellant filed a further statement of claim, this time only against the respondent, in the District Court Common Law Division seeking common law damages in respect of the work injury on 27 April 2004 (the Common Law proceedings). 12 The respondent filed a notice of motion seeking to have the Common Law proceedings struck out on the basis that the appellant, by commencing the Compensation List proceedings, had elected to claim permanent loss compensation pursuant to s 151A(3)(b). The respondent contended that the appellant was bound by that election and was thus disentitled to claim common law damages. 13 The appellant contended that s 151A(3)(b) by its terms only applied to proceedings that had been commenced in the Compensation Court and accordingly, the election provisions did not apply, as he had commenced his permanent loss compensation claim not in the Compensation Court, which had been abolished, but in the District Court, albeit in the Compensation List. 14 The primary judge held that s 151A(3)(b) applied to proceedings commenced in the District Court, so that the commencement of the Compensation List proceedings amounted to an election by the appellant to pursue permanent loss compensation. Her Honour's reasoning was as follows: "1 The clear intention of s 151A(3)(b) is that the election to pursue permanent loss compensation becomes binding upon the commencement of proceedings.

2 It is the clear intention of the District Court Act in respect of its residual jurisdiction that workers' compensation rights of coal miners be heard and determined in the same manner as if the Compensation Court continued to operate.

3 The term residual jurisdiction is employed because it is jurisdiction that remained in the Compensation Court.

4 The District Court has effectively become the Compensation Court for the purposes of exercising this residual jurisdiction.

5 In my view it does not matter that the name of the Court has changed. The District Court continues to deal with the jurisdiction of the Compensation Court." 15 The appellant contended that her Honour erred in her construction of s 151A(3)(b), as it was not permissible to substitute "District Court" for "Compensation Court", which was the effect of her Honour's decision.

The Workers Compensation Act 16 An employee injured in the course of employment may have an entitlement to permanent loss compensation under the Workers Compensation Act. An employee may also have an entitlement to claim damages at common law if the injury was sustained as a result of the employer's negligence: such damages are also governed by the Workers Compensation Act but retain their common law character. Stated in general terms, the law sets its face against double compensation and insofar as this principle applied in the present context, a worker is not entitled to retain both permanent loss compensation and common law damages. The notion that a worker is not entitled to keep both entitlements was given effect by s 151A(3), which provides for a deemed election between remedies, in the circumstances specified in the section.

Earlier form of s 151A 17 The form of the section immediately prior to s 151A(3) also provided for an election between lump sum compensation and common law damages. The election to claim common law damages was in the same form as s 151A(3)(a) and was made by the commencement of proceedings, or by the acceptance of payment of damages. However, the election to claim permanent loss compensation was in different terms and was made by accepting such sum (by way of a settlement) or by the Compensation Court making an award.

Section 151A(3) (as it applies in this case) 18 As stated earlier, s 151A(3)(b) was introduced by the 2000 Act No 87. The effect of the amendment, which introduced s 151A(3)(b), was that the first limb of each of s 151A(3)(a) and (b) became mirror images, in that the commencement of proceedings was the manner in which the election for common law damages or permanent loss compensation, respectively, was taken to have been made. The election constituted by the acceptance of payment remained in each of paras (a) and (b). The amendment commenced on 2 April 2001. I have already set out s 151A(3). However, it is useful to see the provision in context of the section as a whole: " 151A Election - damages or 'Table of Disabilities' compensation

(1) In this section … : damages does not include damages to which Part 6 of the Motor Accidents Act 1988 or Chapter 5 of the Motor Accidents Compensation Act 1999 applies. permanent loss compensation means compensation under Division 4 of Part 3 (Compensation for non-economic loss).

(2) A person to whom compensation is payable under this Act in respect of an injury is not entitled to both: (a) permanent loss compensation in respect of the injury, and (b) damages in respect of the injury from the employer liable to pay that compensation, but is required to elect whether to claim that permanent loss compensation or those damages.

(3) The person makes that election (or is taken to have made that election): (a) by commencing proceedings in a court to recover those damages or by accepting payment of those damages (in which case the person ceases to be entitled to permanent loss compensation in respect of the injury), or (b) by commencing proceedings in the Compensation Court to recover that permanent loss compensation or by accepting payment of that permanent loss compensation (in which case the person ceases to be entitled to recover damages in respect of the injury).

(3A) The amendment of a claim that is the subject of proceedings before the Compensation Court to include a claim for permanent loss compensation is (for the purposes of subsection (3)(b)) taken to constitute the commencement of proceedings in the Compensation Court to recover that permanent loss compensation.

(4) An election is irrevocable, except that an election to claim permanent loss compensation may be revoked with the leave of the court given in accordance with this section.

(5) If: (a) a person elects to claim permanent loss compensation in respect of an injury, and (b) after the election is made, the injury causes a further material deterioration in the person's medical condition that, had it existed at the time of the election, would have entitled the person to additional permanent loss compensation, and (c) at the time of the election, there was no reasonable cause to believe that the further deterioration would occur, the person may, with the leave of the court and on such terms (if any) as the court thinks fit, revoke the election and commence proceedings in the court for the recovery of damages in respect of the injury.

(6) If the election is revoked the permanent loss compensation paid is not required to be repaid, except out of the damages recovered in accordance with section 151B.

(7) If a liability to pay permanent loss compensation results from more than one injury to a worker, a reference in this section to permanent loss compensation is a reference to such part of that compensation as relates to the injury for which damages are recoverable."

(Subsection (5), permitting revocation of an election with the leave of the court, is not relevant to the appellant's circumstances.)

Later amendment to s 151A 19 Section 151A was repealed by the Workers Compensation Legislation Further Amendment Act 2001 No 94 (the 2001 Act No 94), and replaced with a new provision. The new provision commenced on 27 November 2001. (An earlier amendment introduced by Workers Compensation Legislation Amendment Act 2001 No 61 (the 2001 Act No 61) never came into force). In its new form, the section provided: " 151A Effect of recovery of damages on compensation

(1) If a person recovers damages in respect of an injury from the employer liable to pay compensation under this Act then … : (a) the person ceases to be entitled to any further compensation under this Act in respect of the injury concerned (including compensation claimed but not yet paid), and (b) the amount of any weekly payments of compensation already paid in respect of the injury concerned is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the person who paid the compensation, and (c) the person ceases to be entitled to participate in any injury management program provided for under this Act or the 1998 Act. 20 "Compensation" was defined to mean compensation under the Workers Compensation Act and the Workplace Injury Management and Workers Compensation Act 1998 (the WIM Act) and included any monetary benefits under those Acts. It thus included permanent loss compensation: see the WIM Act, s 4 and the Workers Compensation Act, s 3. 21 The new s 151A introduced by the 2001 Act No 94 did not apply to coal miners. The manner in which this exclusion was achieved was itself a little complex. The 2001 Act No 61 inserted cl 3 into the Workers Compensation Act, Sch 6, Part 18, so as to provide that the amendments made by the 2001 Act No 61 did not apply to coal miners. The 2001 Act No 61 also introduced a new Pt 18C into the Workers Compensation Act, Sch 6, dealing with the provisions consequent upon the enactment of the 2001 Act No 61. 22 Clause 3 in Pt 18 and most of the new Pt 18C were to commence on 1 January 2002. Before these provisions commenced, they were amended by the 2001 Act No 94. The date of commencement of the relevant amendments was also 1 January 2002. The combined effect of the two amendments was that Sch 6, Pt 18, cl 3 provided: " 3 2001 amendments not applicable to coal miners

(1) Subject to this clause, the 2001 amendments do not apply to or in respect of coal miners and this Act and the 1998 Act (and the regulations under those Acts) apply to and in respect of coal miners as if the 2001 amendments had not been enacted.

(4) In this clause: coal miners means workers employed in or about a mine to which the Coal Mines Regulation Act 1982 applies.

the 2001 amendments means the amendments made by the [2001 Act No 61] and Schedules 1, 2, 3 and 8 to the [2001 Act No 94]."

(The new s 151A was contained in the 2001 Act No 94, Sch 1.1.)

The Compensation Court Repeal Act 23 Pursuant to the Compensation Court Repeal Act, the Compensation Court was abolished and its jurisdiction was conferred partly on the District Court and partly on the Workers Compensation Commission. The abolition took effect from 1 January 2004. Jurisdiction in respect of coal miners was conferred on the District Court: see the Compensation Court Repeal Act discussed below. 24 In addition to abolishing the Compensation Court, the Compensation Court Repeal Act amended a number of Acts so as to omit reference to "Compensation Court" and insert "District Court". Amendments were made, for example, to the Dust Diseases Tribunal Act 1989; the Police Regulation (Superannuation) Act 1906; the Police Service Act 1990; and the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987. The effect of these amendments was that the jurisdiction previously conferred by these Acts on the Compensation Court was conferred on the District Court. 25 The Compensation Court Repeal Act also effected consequential amendments to the WIM Act, including the insertion of the following definition in s 4: " coal miner matter means any matter arising under the Workers Compensation Acts concerning a claim in respect of a worker employed in or about a coal mine to which the Coal Mines Regulation Act 1982 applies"

and the insertion of a new subs 4A into s 105, as follows: "4A. After the repeal of the Compensation Court Act 1984 , the District Court has exclusive jurisdiction to examine, hear and determine all coal miner matters (except matters arising under Part 5 of the 1987 Act)."

(Part 5 deals with common law remedies.) 26 However, the Compensation Court Repeal Act made no amendment to s 151A(3)(b).

The District Court Act 27 The District Court Act 1973 was amended by the Courts Legislation Amendment Act 2004, inter alia, to absorb the effect of the amendments made by the Compensation Court Repeal Act. Schedule 7, cl 7 inserted into Pt 3: "The civil jurisdiction of the District Court", a new Pt 3, Div 8A: "Residual jurisdiction of Court". Div 8A provided, relevantly: " 142G Definition

residual jurisdiction means the jurisdiction conferred on the District Court by operation of the Compensation Court Repeal Act 2002 .

Note . The jurisdiction conferred on the District Court by operation of the Compensation Court Repeal Act 2002 is the following jurisdiction:

(a) jurisdiction to examine, hear and determine all coal miner matters (within the meaning of the Workplace Injury Management and Workers Compensation Act 1998 ) except matters arising under Part 5 of the Workers Compensation Act 1987 …

142I Powers of Court when exercising residual jurisdiction

For the purposes of exercising its residual jurisdiction, the District Court has the same powers, authorities, duties and functions as the Compensation Court had under the Compensation Court Act 1984 immediately before 1 January 2004. The powers conferred by this section are not limited by any other provisions of this Division."

Submissions 28 Both parties accepted that the purpose of the election provisions in s 151A(3) was principally to avoid two sets of legal costs. Both parties also accepted that it was apparent that the legislature intended to encourage negotiation and to provide against double recovery, that is, of both permanent loss compensation and common law damages: see Humphreys v Mulco Tool & Engineering Pty Limited [2006] NSWCA 355 at [82]-[84] per McColl JA. 29 The appellant contended that Sidis DCJ erred in finding that the filing of a statement of claim in the District Court constituted an election for the purposes of s 151A(3)(b). The appellant submitted that s 151A(3)(b) had to be read in accordance with its terms. Those terms were unambiguous and the intention of the legislature at the time the provision was introduced was clear. Parliament meant that at that time to refer to the "Compensation Court" and to no other court. On its express terms, s 151A(3)(b) did not apply to the proceedings commenced by the appellant on 14 March 2007, as those proceedings were commenced in the District Court and not the Compensation Court. 30 The appellant submitted that the clear and unambiguous language of s 151A(3)(b) was to be contrasted with s 151A(3)(a), which used the more generic term "commence proceedings in a court" (emphasis added). It followed, on the appellant's argument, that s 151A(3)(b) did not operate in this case so as to effect an election to claim permanent loss compensation and not common law damages, because no proceedings had been commenced in the Compensation Court. It might be noted in passing that the consequence of this submission is that the first limb of s 151A(3)(b) has had no operation since 1 January 2004, when the Compensation Court was abolished. 31 The appellant further submitted that her Honour erred in concluding that the District Court Act, Pt 3, Div 8A, which conferred residual jurisdiction on the District Court, had the effect that the commencement of proceedings in the District Court's residual jurisdiction constituted an election by the appellant. The District Court and the Compensation Court were at all times distinct entities. At one stage, both existed. The Compensation Court was then abolished, and although the jurisdiction of the District Court was extended by the conferral of residual jurisdiction, that Court did not thereby become the Compensation Court. 32 The appellant pointed out that even though there was no warrant, as a matter of construction, to, in effect, substitute "District Court" for "Compensation Court" in s 151A(3)(b), the principle against double recovery continued to operate because the subsection still provided that a person elected to claim permanent loss by the acceptance of payment of such compensation. This would work in practice either by a person accepting an offer of settlement or by accepting the payment of permanent loss compensation after an award was made by the District Court in the exercise of its residual jurisdiction. 33 It was an integral part of the second aspect of this submission that a plaintiff could commence proceedings for permanent loss compensation and prosecute those proceedings through to judgment. However, the plaintiff, if successful, would not be obliged to accept payment of any judgment sum awarded in such proceedings. If the plaintiff did not accept payment of the award, he or she could commence proceedings for common law damages. In that situation, although no election to claim permanent loss compensation had been made, an election to claim common law damages would have been effected by operation of s 151A(3)(a). 34 The appellant acknowledged that on this construction, the purpose of s 151A(3) in avoiding the costs of two sets of proceedings would not be achieved. He suggested, however, that that could be achieved, in practice, by a court either not awarding costs in a second set of proceedings or by setting aside any previously made costs order. On the appellant's submission, there would be nothing particularly startling in this, as this was the position that had been in place prior to the amendment made to s 151A(3)(b) by the 2000 Act No 87. This last submission is not completely accurate. Under the provision in its form prior to s 151A(3)(b), the election to claim lump sum compensation was made by accepting payment of such compensation, or by the court making an award. On the appellant's construction of s 151A(3)(b) post abolition of the Compensation Court, a plaintiff could obtain an award for lump sum compensation, but not accept payment of it. Provided payment was not accepted, then, on the appellant's argument, a plaintiff would not have made an election. 35 The respondent submitted that this argument ignored the purpose and meaning of the District Court Act, s 142I. It pointed out that the use of the generic term "court" contained in the phrase "commence proceedings in a court" in s 151A(3)(a), was necessary, because a claim for damages could be commenced in any court of competent jurisdiction (relevantly, the District or Supreme Court), whereas, prior to its abolition, the Compensation Court had the sole jurisdiction to hear claims for permanent loss compensation.

Relevant principles of construction 36 As a matter of statutory construction the Court is required to give effect to the legislative purpose of Parliament in enacting a statutory provision. This is done through the language used by Parliament. As the High Court said in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297, at [23], 320 per Mason and Wilson JJ: "[23] The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. But in performing that task the courts look to the operation of the statute according to its terms and to legitimate aids to construction." 37 In Project Blue Sky v ABA [1998] HCA 28; (1998) 194 CLR 355, McHugh, Gummow, Kirby and Hayne JJ stated: "[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'. In Commissioner for Railways (NSW) v Agalianos , Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed.

[71] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was 'a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent'." (Citations omitted) 38 In this case, the Court is not only concerned with s 151A(3) in the terms in which it was originally enacted. If the task of statutory construction was being undertaken prior to the 2001 amendments, the principles of construction referred to in Cooper Brookes and Project Blue Sky would yield an obvious result: "Compensation Court" would mean "Compensation Court". However, since s 151A(3) was enacted, there have been extensive amendments to the Workers Compensation Act; there has been the enactment of the Compensation Court Repeal Act; there have been consequential amendments to various Acts following upon the enactment of that Compensation Court Repeal Act and there have been amendments to the District Court Act. 39 Section 151A(3)(b) stayed under the radar of that raft of legislation. It is reasonable to suppose that that was due to legislative oversight. It is doubtful, if not certain, that the legislature would not have left the provision in its present form had it adverted to its existence. To have done so would have been inconsistent with its approach in amending other legislation in which there was a reference to the Compensation Court. The likelihood of oversight is also apparent from the fact that the legislature amended provisions of the WIM Act so as to provide that coal miner matters were dealt with in accordance with the new procedures of that Act. The legislature also conferred jurisdiction to deal with coal miner matters on the District Court. The first limb of s 151A(3)(b), unless construed so as to read "District Court" instead of "Compensation Court", thus stands as an anachronism with no effective operation. 40 The question for decision in these circumstances is whether, by the application of relevant principles of statutory construction, the legislative oversight can be judicially rectified by substituting the words "District Court" for "Compensation Court" in s 151A(3)(b). 41 A court is not permitted to fill a gap or oversight in legislation by itself implying into the legislation that which has been omitted. That is properly the function of the legislature: Marshall v Watson [1972] HCA 27; (1972) 124 CLR 640. In Marshall the Mental Health Act 1959 (Vic), s 42 provided that a person could be admitted to and detained in a psychiatric hospital, provided there was specified documentation to support the admission and detention. The legislation was silent, however, as to how the person was to be got to hospital so as to be admitted under the section. The plaintiff was taken to hospital by the defendant, a police officer, and was admitted and detained. The plaintiff sued the police officer for trespass and wrongful detention in the police car. The police officer argued that in order for the legislation to be effective, it was necessary that there be power to convey a person to hospital and that such power should be implied in the statutory scheme. 42 Barwick CJ, with whom McTiernan J agreed, observed that a power to convey the person to hospital was necessary to make the legislation work and that there was force in the submission that such a power ought to be implied. His Honour examined the possible range of persons in whom such an implied power might be invested, noting that it might range from a member of the public, to the person who signed the request for admission, to a member of the police force. His Honour continued, at [8]-[9], 644: "[8] But apart altogether from the reluctance which a court ought properly have to imply a power of arrest and detention, I cannot find room in this legislation to imply an authority in any particular person or class of persons to exercise a power of arrest or detention …

[9] It seems to me, therefore, that the case is one in which a necessary element in the statutory scheme has been omitted by the legislation, and that the gap ought not, and cannot, be filled by construction of the legislation so as to imply the requisite power." 43 Stephen J, with whom Menzies J agreed, expressed a similar view, at [10], 649: "[10] Granted that there may seem to be lacking in the legislation powers which it might be thought the Legislature would have done well to include, it is no power of the judicial function to fill gaps disclosed in legislation; as Lord Simonds said in Magor and St. Mellons R.D.C. v Newport Corporation (1952) AC 189, at p 191, 'If a gap is disclosed, the remedy lies in an amending Act' and not in a 'usurpation of the legislative function under the thin disguise of interpretation'." 44 There is a distinction between filling a gap in legislation, which is impermissible, and construing legislation so that upon its proper interpretation, words need to be supplied or substituted. In cases of obvious grammatical mistakes, the text of the legislation is to be construed in way which corrects the error. Director of Public Prosecutions v Fowlers [1984] HCA 48; (1984) 154 CLR 627 was a case where the High Court corrected an obvious grammatical mistake, stating at [4], 630: "[4] … a simple grammatical mistake was made in the drafting of the sub-section, and that if the strict grammatical sense of the words is adhered to it would lead to an absurdity. In these circumstances the court is entitled to attribute to the provision the meaning which it was obviously intended to have. Section 14(3) must therefore be read as though the word 'either' appeared not before the words 'quash the conviction' but before the words 'direct a judgment'." 45 The position is not so straightforward where it appears that words need to be substituted or added because of a legislative oversight. Cooper Brookes is often cited as authority as to the approach that the courts may take where there has been an inadvertent omission or oversight by the legislature. That categorisation is not entirely apt: see further at [*50] below. Rather, it is a matter of "reading down" the words of the legislative text. In Cooper Brookes, the alleged omission occurred after a series of amendments to the Income Tax Assessment Act 1936 (Cth). The statutory provision under consideration was to the effect that references in another section to a "company" applied in relation to a holding company, as if they were references to the holding company. Some of the references to a "company" in the other provisions, so applied, made sense. If the reference in the particular provision under consideration was so applied, the section made no sense. 46 The members of the Court all considered that a mistake had occurred in the drafting of the legislation through the various amendments that had been made. Gibbs CJ, at [6], 305-306 considered that the history of the legislation made it apparent that a mistake had occurred and how it had occurred. Stephen J 's explanation at [8]-[10], 310-311 of the principles that govern the court when taking upon itself the task of adding or substituting words, was as follows: "[8] But this is not the literal meaning of the substitution provisions of s 80C(3): if literal meaning is to be departed from, it must be clear beyond question both that literal meaning does not give effect to the intention of the legislature and that some departure from literal meaning will fulfil that intent.

[9] Statute law, the direct product of the legislature, is perhaps the least appropriate field of all in which to indulge in judicial law-making. The corner of that field occupied by closely drafted statutes of high complexity should be particularly uninviting to the judicial law-maker. It provides the very antithesis of those occasional legislative measures which lay down only general principles and invite the courts to supply the details. It can never be enough to justify judicial intervention that what has been enacted may seem to a court to lead to an irrational result.

[10] Were this all that stood in the way of a literal construction, I would have difficulty in disregarding the clear meaning of the simple words which appear in s 80 C (3). However a close examination of that sub-section against the background of its legislative history and that of its neighbouring sections has satisfied me that the intent of its framers, which it reflected when it was originally enacted, has been stultified by amendments to other provisions, which for some reason have passed by s 80 C (3). That sub-section now stands as an anachronism; the failure to amend it to accord with those provisions upon which it operates and have themselves long since been amended, ensures that to give it its literal application will, in the words of Fry LJ, be to construe 'the Act in order to defeat its object rather than with a view to carry its object into effect; Curtis v Stovin (1889) 22 QBD 513 at p519." 47 Mason and Wilson JJ considered that a literal interpretation of the provision as it appeared to operate after the various amendments to the statute would give it a capricious and irrational operation. They considered that it was necessary to read words into the section so as to make them comply with the clear statutory intent. Their Honours said, at [32], 322, that this approach was justified on the basis that it was a matter of necessary implication to be deduced from the legislative scheme as a whole. It was also justified on the application of the mischief rule. 48 Cooper Brookes was handed down in June 1981. In December 1978, the House of Lords delivered its decision in Jones v Wrotham Park (also known as Wentworth Securities v Jones) [1979] 1 All ER 286; [1980] AC 74 where it also examined the circumstances in which words may be implied in a statutory text where there has been an omission due to legislative inadvertence. Lord Diplock explained the circumstances in which the Court was entitled to do so at 28-9, 105-107: "My Lords, I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a court of justice is engaged remains one of construction; even where this involves reading into the Act words which are not expressly included in it. Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850 provides an instance of this; but in that case the three conditions that must be fulfilled in order to justify this course were satisfied. First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by parliament had their attention been drawn to the omission before the Bill passed into law. Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed. Such an attempt crosses the boundary between construction and legislation. It becomes a usurpation of a function which under the constitution of this country is vested in the legislature to the exclusion of the courts." 49 Although Cooper Brookes did not refer to Wrotham Park, I do not understand that the High Court was stating any different principle. To the extent that there is any difference in the two cases, it is in Lord Diplock's specific articulation of three conditions that must be satisfied before the Court can substitute or add words in the legislative text. It should be noted that this particular process of statutory construction is directed to ensuring the mischief that parliament intended to remedy. This is clear from the first 'condition' identified by Lord Diplock in Wrotham Park. 50 At this point, reference should be made to language. The authors of D C Pearce and R S Geddes, Statutory Interpretation in Australia, 4th ed (1996) Butterworths, Sydney, para 2.16, stated that Cooper Brookes was authority for the proposition that words may be substituted for or added to the legislative text. That characterisation was understandable, as it was the manner in which the principle was judicially described: see, for example, McHugh J in Bermingham v Corrective Services Commission (NSW) (1988) 15 NSWLR 292. However, in R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681; 107 A Crim R 1 Spigelman CJ explained this was not a correct characterisation of the task of statutory construction involved in Cooper Brookes. Rather, Cooper Brookes was a case of "reading down" words of general application. His Honour said, at [18]: "What the court concluded was that in a particular paragraph, the word 'company' would not be given the extended meaning which a subsection said that all such references should be given. In the full context of all the relevant provisions and of the legislative history - 'literal in total context' - the subsection which made provision for the extended meaning was read down so as not to apply to the specific reference in the paragraph."

(D C Pearce and R S Geddes, Statutory Interpretation in Australia , 6 th ed (2006) Butterworths, Sydney, para 2.31, now picks up Spigelman CJ's analysis.) 51 In Wrotham Park Lord Diplock stressed that the task is one of statutory construction. Spigelman CJ in Young also emphasised that, where the question is whether the Court may supply words that have been omitted from a statutory provision, the task involved is one of statutory construction. His Honour said, at [14]: "Putting to one side obvious typographical errors (see Bennion, Statutory Interpretation: A Code , 3rd ed (1997) Butterworths, London at 675-677), the court supplies words 'omitted' by the draftsperson only in the sense that the words so included reflect in express, and therefore more readily observable, form, the true construction of the words actually used. In my opinion, the authorities do not warrant the court supplying words 'omitted' by inadvertence per se." 52 In R v PLV [2001] NSWCCA 282; (2001) 51 NSWLR 736; 123 A Crim R 194 Spigelman CJ reiterated, at [87], that "the process is one of construction". As his Honour explained: "… the words actually used by the Parliament are given an effect as if they contained additional words. That is not, however, to 'introduce' words into the Act. It is to construe the words actually used. Interpretation must always be text based."

His Honour further observed, at [88], that: "The authorities which have expressed the process of construction in terms of 'introducing' words to an Act or 'adding' words have all … been concerned to confine the sphere of operation of a statute more narrowly than the full scope of the dictionary definition of the words would suggest … I know of no case in which words have been read up."

His Honour concluded, at [89], that to expand the sphere or operation of a statutory provision by this process was impermissible. 53 It is also important to emphasise that merely passing through the 'gateway' of the three conditions identified by Lord Diplock does not necessarily mean that words can be judicially supplied. In commenting upon Lord Diplock's remarks, Spigelman CJ in Young said, at [12]: "As I understand the recent cases, they are not authority for the proposition that a court is entitled, upon satisfaction of the three conditions postulated by Lord Diplock, to perfect the Parliamentary intention by inserting words in a statute. The court may construe words in the statute to apply to a particular situation or to operate in a particular way, even if the words used would not, on a literal construction, so apply or operate. However, the words which actually appear in the statute must be reasonably open to such a construction. Construction must be text based." 54 The same sentiment was expressed by Nicholls LJ in Inco Europe Ltd v First Choice Distribution [2000] 2 All ER 109. His Lordship said, at 115: "Sometimes, even when these conditions are met, the court may find itself inhibited from interpreting the statutory provision in accordance with what it is satisfied was the underlying intention of Parliament. The alteration in language may be too far-reaching. In Western Bank Ltd v Schindler [1976] 2 All ER 393 at 404, [1977] Ch 1 at 18 Scarman LJ observed that the insertion must not be too big, or too much at variance with the language used by the legislature. Or the subject matter may call for a strict interpretation of the statutory language, as in penal legislation." 55 Lord Nicholls commented, at 115, that the court must be certain of the substance of the provision, although not necessarily the precise words Parliament would have used, had the error in the terms of the provision been noticed before. Although Lord Nicholls based his proposition upon Lord Diplock's statement extracted above, Lord Nicholl's formulation may be a more elastic test than stated by Lord Diplock, viz: that unless the Court is certain as to the words that the legislature would have used, it is impermissible to engage in this particular process as to do so would involve the courts in legislating and not in the task of statutory construction. Regardless of whether there is any elasticity permitted, there must be a high degree of exactitude in the words the court determines were omitted by Parliament. Otherwise, the court would be involved in the impermissible task of redrafting the legislative provision. I should add that both Lord Diplock and Lord Nicholls emphasised the criticality of this particular requirement. 56 In Young Spigelman CJ at [30]-[31], referred to another technique of statutory construction, namely, giving ambulatory operation to the text. Bermingham was an example of such a case. It is convenient to extract his Honour's explanation of that case: "[30] In Bermingham , the court was concerned with a statute-making provision for the transfer of prisoners between States. The section in issue allowed credit for remissions in the transferee State, to which a prisoner would have been eligible in the transferor State. In that case the transferred prisoner had earned remissions from the minimum term of imprisonment. (Then still referred to in New South Wales as a non-parole period.) The relevant provision referred to 'any remission of his sentence of imprisonment'. The issue before the court was whether this applied only to the head sentence or whether it also applied to the minimum term. The difficulty arose because the relevant subsection was premised on the application of another section which dealt only with head sentences.

[31] One purpose of the Act was to ensure that prisoners were not disadvantaged after transfer. The words 'sentence of imprisonment' were construed to encompass both the minimum term and the head sentence (at 299B-C and 300C). Although the court used the language of making good an 'omission', referring to Tokyo Mart , it emphasised that what it was doing was construing the words actually used - 'sentence of imprisonment' - so that they included the 'minimum term' (at 299D and 300C). This gave an ambulatory operation to the actual text."

His Honour concluded, at [32], that there was no basis to supply omitted words in a text unless either of the two techniques of statutory construction could be utilised. 57 F A R Bennion, Statutory Interpretation: A Code, 5th ed (2008) Butterworths, London at 875, states that there is a presumption that the legislature intends the court to apply a construction rectifying any error in the drafting of an enactment where it is required in order to give effect to the legislature's intention: see also Halsbury's Laws of England, 4th ed, para 1472. Bennion cites the case of Inco Europe as an example where the court applied the presumption and rectified a drafting error. Bennion, at 877, expresses the justification for the presumption as follows: "It would not be right to allow such human mistakes to frustrate the will of Parliament." 58 Commentators have identified six categories of case that have been recognised in Great Britain as instances where rectifying construction may be required. They are (1) the text being garbled (grammatically incomplete or otherwise corrupt); (2) the text containing an error of meaning; (3) the text containing a casus omissus (omitted case), so that the literal meaning is narrower than the object; (4) the text containing a casus male inclusus (wrongly included case), so that the literal meaning is wider than the object; (5) the case where there is textual conflict and (6) the case where Parliament based its enactment on an error of law (see Bennion at 877 and Halsbury's Laws of England, para 1472). 59 The techniques of statutory construction discussed above are well-established and have been applied in a variety of cases in Australia: see Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214 at [17], 243 per McHugh J; Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85 at 113 and 116 per McHugh J; Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 422 per McHugh JA; Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275 at 283 per Mahoney JA (McHugh and Clarke JJA agreeing); Bermingham at 299-300 per Hope JA (Mahoney and McHugh JJA agreeing) and at 302 per McHugh JA; and Ellavale Engineering Pty Ltd v Pilgrim [2005] NSWCA 272 at [51]-[52] and [82] per Beazley JA (Campbell AJA agreeing). See also R v Firns [2001] NSWCCA 191; (2001) 51 NSWLR 548 at [66]-[67] per Mason P (Hidden J agreeing); Austral Monsoon Industries Pty Ltd v Pittwater Council [2009] NSWCA 154 at [68] per Spigelman CJ (McColl JA and Handley AJA agreeing) and Ravenscroft v Nominal Defendant [2007] QCA 435; (2008) 2 Qd R 32 at [38]-[43] per Muir JA. 60 It is unnecessary to review the manner in which the principles have been stated in these various cases. The techniques of statutory construction are clearly stated in the Chief Justice's judgment in Young and repetition does not aid the process. Indeed, often, it merely serves to confuse. 61 However, the comments of Mahoney JA (McHugh and Clarke JJA agreeing) in Tokyo Mart are relevant to the question in issue. His Honour said, at 283: "Legislative inadvertence may consist, inter alia, of either of two things. The draftsman may have failed to consider what should be provided in respect of a particular matter and so fail to provide for it. In such a case, though it may be possible to conjecture what, had he adverted to it, he would have provided, the court may not, in my opinion, supply the deficiency. In the other case, the legislative inadvertence consists, not in a failure to address the problem and determine what should be done, but in the failure to provide in the instrument express words appropriate to give effect to it. In the second case, it may be possible for the court, in the process of construction, to remedy the omission." 62 For reasons which I explain below, I consider that the omission in the present case is of the first type identified by his Honour.

Application of principles to this case 63 The primary judge's reasoning process was as follows. First, she noted that in its residual jurisdiction, the District Court hears and determines coal miner matters "in the same manner as if the Compensation Court continued to operate". She next said that the term "residual jurisdiction" was used because it was the jurisdiction that remained in the Compensation Court. She thus reasoned that the District Court had effectively become the Compensation Court "for the purposes of exercising this residual jurisdiction". It did not matter, in her Honour's view, that the name of the Compensation Court had changed. It was implicit in this reasoning that as the name of the Court had changed, the election provisions in s 151A(3)(b) continued to apply to the claim made by the appellant, so that by commencing proceedings for permanent loss compensation in the District Court (that is, the Compensation List proceedings), the appellant had elected to claim such compensation and was debarred from claiming common law damages. 64 As has been indicated above, the District Court, when hearing coal miner matters, has the same powers, authorities, duties and functions as the Compensation Court; the District Court Act, s 142I; and a claim is to be decided on the real merits and justice of the case and is not vitiated by any want of form: the District Court Act, s 142J. Thus, the first observation in her Honour's reasoning, that the District Court is to hear and determine coal miner matters in the same manner as was the case in the Compensation Court, correctly reflects the statutory scheme. Problems arise, however, in the succeeding aspects of her Honour's reasoning. 65 Her Honour said that the term "residual jurisdiction" was used because it was the jurisdiction that remained in the Compensation Court. That is not correct. The Compensation Court Repeal Act abolished the Compensation Court and its jurisdiction, relevantly in respect of coal miners, was conferred on the District Court. No jurisdiction remained in the Compensation Court for the simple reason that the court had been abolished. It is possible that the reference by her Honour to the Compensation Court was a slip in language and she meant to refer to the jurisdiction being in the District Court. However, whether this was a mere misstatement or misunderstanding of the legislation, this was an error of construction of the Courts Legislation Amendment Act. 66 However, the central error in her Honour's reasoning was her statement that the District Court had "effectively become the Compensation Court for the purposes of exercising this residual jurisdiction" and that "the name of the Court [had] changed". As I have said, the Compensation Court was statutorily abolished. It was not replaced by, or assumed into, another court. The jurisdiction that the Compensation Court exercised in respect of coal miner matters was conferred on the District Court. However, this conferral of jurisdiction did not mean that the District Court became the Compensation Court. Judicial bodies do not morph in this way. Express legislation would have been required both to turn the Compensation Court into the District Court and to change its name for her Honour's statement to be correct. Her Honour's conclusion, therefore, misconstrued the legislative scheme introduced by the Compensation Court Repeal Act and the Courts Legislation Amendment Act. As her Honour erred in point of law, the appellant is entitled to relief unless it could be said that the outcome of the appeal was correct in any event. 67 The respondent advanced two arguments to support her Honour's conclusion. The first was based upon the District Court Act, s 142I. As I understand it, her Honour's reasoning was based on this provision and what I have already said is sufficient to reject this argument. However, it should be emphasised that s 142I governs the manner in which the District Court exercises its residual jurisdiction, that is, the District Court has the same powers, authorities, duties and functions as the Compensation Court had prior to its abolition. Section 142I does not touch in any way upon the operation of s 151A(3)(b). The two sections work in different spheres. Section 142I governs the exercise of the residual jurisdiction. Section 151A(3) governs the rights of the parties by effecting a statutory election or, as McColl JA stated in Humphreys v Mulco Tool Engineering, at [83], it acts as a deeming provision. The abolition of the Compensation Court may have abrogated the extent to which the election operates but that does not mean that s 142I somehow fills a lacuna left by that abolition. It does not do so by its own terms and s 151A(3) does not confer anything on a court, or declare what powers, authority, duties or functions a court has. Accordingly, I do not find support for the respondent's argument in s 142I. 68 The second argument was that as a matter of statutory construction, since the abolition of the Compensation Court, s 151(3)(b) was to be read so that "District Court" appeared in the provision. The arguments advanced by both parties on this question focussed on whether s 151A(3)(b) could be construed in this way. However, this approach misconceived the question. The appellant was alive to the misconception when he submitted that as there was no ambiguity or omission in s 151A(3)(b) when it was introduced, there was no principle of statutory construction that permitted the provision to be read other than in accordance with its ordinary meaning. This submission is correct: the principles of statutory construction under consideration in Cooper Brookes and Wrotham Park were directed to the meaning of legislation as introduced by the legislature. Those cases deal with the situation where a statutory provision is construed so as to "reflect in express, and therefore more readily observable form, the true construction of the words actually used": see Young per Spigelman CJ in the passage set out above at [*51]. The meaning of s 151A(3)(b) as introduced by the legislature was unambiguous and is to be applied according to its terms. 69 The difficulty arose at a later point of time when the Compensation Court Repeal Act was introduced and s 151A(3)(b) was not amended to accord with the new structure in which coal miner compensation matters were to be determined, that is, in the District Court. For the respondent's submission to succeed, it would be necessary to construe either the Compensation Court Repeal Act, or possibly the Courts Legislation Amendment Act, which inserted Pt 3, Div 8A, "Residual Jurisdiction of Court" into the District Court Act as if one or other contained a provision that effected an amendment to s 151A(3)(b) whereby the words "District Court" replaced the "Compensation Court". 70 However, such an approach would write into the legislation a provision that the legislature appears to have completely overlooked. The principles of statutory construction make it clear that the court may not supply a deficiency in legislation in this way. In short, to construe either Act in that way would involve impermissibly filling a gap in the legislation: see the decisions in Marshall and Tokyo Mart discussed above. The application of the principle itself is sufficient to refute the respondent's argument. However, it is worth commenting that it cannot be assumed that the legislature would have left s 151A(3) in the same terms in so far as it affected coal miners had it turned its mind to that provision at the time that the Compensation Court Repeal Act was introduced. Section 151A as it affected other workers had long been amended and a different scheme altogether had been introduced to ensure against double recovery. The Court cannot presume what the legislature might have considered was the appropriate regime for coal miners, given the momentous changes in the legislation over the succeeding years. Thus, even though the result for which the respondent contended might be seen to be logical, as a matter of legal principle, logic does not provide the answer. 71 Accordingly, I am of the opinion that the trial judge erred in point of law in her construction of the section and I propose the following orders:

4. Order that the respondent's notice of motion filed in the District Court be dismissed with costs;

5. Order that the respondent pay the appellant's costs of the appeal. Direct that the respondent have a certificate under the Suitors' Fund Act 1951, if so entitled. 72 GILES JA: As described in the reasons of Beazley JA, which I have had the advantage of reading in draft, Sidis DCJ dismissed with costs proceedings brought by the appellant claiming common law damages, on the basis that the appellant had earlier elected to claim permanent loss compensation. Her Honour considered that s 151A(3)(b) of the Workers Compensation Act 1987 applied to bring that result because the District Court had effectively become the Compensation Court for the purposes of the earlier claim, in substance reading the reference to the Compensation Court in para (b) as a reference to the District Court. 73 Appeal to this Court lay under s 142N of the District Court Act 1973. Some appeals under that section require leave, see s 142N(4). The respondent submitted, but the appellant contested, that leave was required in this case. It is not necessary to decide. The judge's decision effectively concluded the appellant's claim, and the question in the appeal has some general importance. A grant of leave was not opposed, and so far as necessary leave to appeal should be granted. 74 Beazley JA has set out the relevant statutory provisions and has referred to relevant authorities. With the benefit of her Honour's discussion, I can briefly explain my reasoning to agreement with her Honour that the appeal should be upheld. 75 At the time s 151A was enacted in the form relevant to this case, the reference in para (b) to the Compensation Court was appropriate. That paragraph had work to do in providing for election by commencing proceedings in the Compensation Court to recover permanent loss compensation. 76 The present question came with the abolition of the Compensation Court by the Compensation Court Repeal Act 2002 some years later. The jurisdiction of the Compensation Court was conferred in part on the District Court and in part on the Workers Compensation Commission, in the case of a claim for permanent loss compensation by a coal miner on the District Court. But the reference to the Compensation Court in s 151A(3)(b) remained, most likely through mistaken failure by the legislature to have it in consideration. 77 There could no longer be proceedings in the Compensation Court claiming permanent loss compensation. The reference in para (b) to the Compensation Court had no work to do in providing for election by commencing such proceedings. The question in the appeal is, in essence, whether the court can supply a solution to the problem created by the apparent mistake in the manner the trial judge did. 78 In R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681 Spigelman CJ said - "5 The proposition that a court can introduce words into an Act of Parliament offends a fundamental principle of our constitutional law. It is no part of the function of any judge to amend legislation. The task of the courts is to determine what Parliament meant by the words it used, not to determine what Parliament intended to say. …

6 In order to construe the words actually used by Parliament, it is sometimes necessary to give them an effect as if they contained additional words. This is not, however, to introduce words into the Act. This involves the construction of the words actually used. Judicial statements which appear to have been prepared to countenance something more than this, should be so understood.

8 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.

9 The contemporary approach is as set out by Lord Diplock in Wentworth Securities v Jones [1980] AC 74 at 105-107: 'My Lords, I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a court of justice is engaged remains one of construction; even where this involves reading into the Act words which are not expressly included in it. Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850 provides an instance of this; but in that case the three conditions that must be fulfilled in order to justify this course were satisfied. First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law. Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed. Such an attempt crosses the boundary between construction and legislation. It becomes a usurpation of a function which under the constitution of this country is vested in the legislature to the exclusion of the courts.' 10 The passage has been adopted and applied in this Court. … ." (citations of authorities omitted) 79 The Chief Justice referred at [17] to Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297 as "the basic Australian authority on legislative inadvertence", and explained why it was not a case of reading words into a statute but of reading down words of general application. The literal meaning of words, previously appropriate, was made "incongruous" (per Gibbs CJ at 305) or "capricious and irrational" (per Mason and Wilson JJ at 321) in particular circumstances by later amendment of a definitional provision. The amended provision was read down in its application in the circumstances. 80 In Inco Europe Ltd v First Choice Distribution (2000) 1 WLR 586 at 592 Lord Nicholls said succinctly, as part of a passage in accord with the approach of Lord Diplock in Wentworth Securities v Jones [1980] AC 74, that "[t]he courts are ever mindful that their constitutional role in this field is interpretative". 81 Until the abolition of the Compensation Court, there was no occasion to construe s 151A(3)(b) as if it contained additional words, or as if it did anything other than refer to the Compensation Court. Proceedings to recover permanent loss compensation could be commenced in the Compensation Court, whereby an election was made or was taken to have been made. 82 The words did not take on a new meaning upon the abolition of the Compensation Court. The reference to commencing proceedings in the Compensation Court to recover permanent loss compensation simply lost its subject-matter. The result at which the judge arrived was not one of construction or interpretation of s 151A(3)(b) as it was enacted. It was one of legislation subsequently to amend s 151A(3)(b). It required that the legislature had enacted, in the Compensation Court Repeal Act or elsewhere, that s 151A(3)(b) be amended either to add after the reference to the Compensation Court words such as "or such court as is exercising that Court's jurisdiction", or to delete the "Compensation Court" and replace it by "District Court". Amendment is the province of the legislature. 83 As explained by Beazley JA, it cannot be said with confidence that legislative attention to amendment of para (b) would have brought amendment in one or other of the ways described above. But in any event, it is not for the courts to amend legislation under the guise of construction. Nor, with respect, did the fact that the District Court had effectively become the Compensation Court for the purposes of the earlier claim make judicial amendment permissible. It was part of the problem, not the occasion for its solution. 84 It was not submitted that the earlier claim for permanent loss compensation was an election, as required by s 151A(2), outside the operation of s 151A(3), made by claiming permanent loss compensation regardless of the court in which proceedings were commenced. 85 I agree with the orders proposed by Beazley JA. 86 BASTEN JA: The short question raised by this appeal is whether a court can effect an amendment to legislation to make provision which the Parliament might have made, but did not, consequential upon the disestablishment of the Compensation Court. 87 The factual and procedural background, the relevant statutory provisions and the authorities have been more than adequately identified and explained by Beazley JA and require no further repetition. I agree with her Honour's conclusion that the appeal should be allowed. 88 This case explores the limits of the Court's powers with respect to statutory construction, in circumstances where the legislature appears to have made a mistake. McHugh JA, in Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 said at 424D: "The days are gone when judges, having identified the purpose of a particular statutory provision, can legitimately say, as Lord Macmillan said in Inland Revenue Commissioners v Ayrshire Employers Mutual Insurance Association Ltd [1946] 1 All ER 637 at 641, of the means used to achieve the purpose: 'the legislature has plainly missed fire'. Lord Diplock in an extrajudicial comment on that decision has said, that 'if … the Courts can identify the target of Parliamentary legislation their proper function is to see that it is hit: not merely to record that it has been missed': 'The Courts as Legislators', The Lawyer and Justice (Sweet and Maxwell) (1978) at 274." 89 As Kirby J stated in James Hardie & Coy Ltd v Seltsam Pty Ltd [1998] HCA 78; 196 CLR 53 at [73], Lord Diplock's approach to statutory construction, as further identified in Jones v Wrotham Park Settled Estates [1980] AC 74 at 105, also prevails in Australia. However, as Jordan CJ pithily noted in another context, "there are mistakes and mistakes". Some mistakes are capable of correction by the courts, others are not. In Marshall v Watson [1972] HCA 27; 124 CLR 640 at 649, Stephen J stated: "Granted that there may seem to be lacking in the legislation powers which it might be thought the Legislature would have done well to include, it is no power of the judicial function to fill gaps disclosed in legislation; as Lord Simonds said in Magor and St Mellons R D C v Newport Corporation (1952) AC 189, at p 191, 'If a gap is disclosed, the remedy lies in an amending Act' and not in a 'usurpation of the legislative function under the thin disguise of interpretation'." 90 The limits of the proper function of a court in such circumstances reflect the principle of the separation of powers. While the particular formulation of that principle to be derived from the Commonwealth Constitution does not in terms apply to the States, as reflected in the English case law, there is nevertheless a constitutional structure to be derived from the general law which institutionalises a degree of separation of powers: cf A Twomey, The Constitution of New South Wales (Fed Press, 2004) at 747; the Hon R S French, "Executive toys: Judges and non-judicial functions" (2009) 19 JJA 5 at 16. Thus, the limits of general law judicial review of administrative action reflect such a principle; Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 at 36 (Brennan J). As with its Commonwealth counterpart, the Interpretation Act 1987 (NSW) requires that legislation be read so as not to exceed the legislative power of the State Parliament and so that a provision which would otherwise exceed power, shall be valid to the extent that it does not: s 31. Of the equivalent s 15A in the Acts Interpretation Act 1901 (Cth), Brennan J stated in Re Dingjan; Ex parte Wagner [1995] HCA 16; 183 CLR 323 at 339: "But s 15A can save a provision that is literally in excess of legislative power only if two conditions are satisfied: first, that 'the law itself indicates a standard or test which may be applied for the purpose of limiting, and thereby preserving the validity of, the law' and, second, that the operation of the law upon the subjects within power is not changed by placing a limited construction upon the law." 91 A court exercising federal jurisdiction is not required by s 15A to legislate; "in no case can the Court be required to legislate nor should it do so": Strickland v Rocla Concrete Pipes Ltd [1971] HCA 40; 124 CLR 468 at 493 (Barwick CJ); see also Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; 211 CLR 476 at [102] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ). This approach should inform the limits of this Court in exercising powers of statutory construction, in cases where it is apparent that the legislature has made a mistake. 92 The tripartite test adopted by Lord Diplock in Jones v Wrotham Park should not be treated as a statutory formula, and is not always readily applicable in particular circumstances. Nevertheless, where some variation is sought of the statutory language, it is an essential precondition to any legitimate exercise of the power of statutory construction that it be "possible to state with certainty" what words would have been adopted by the drafter and approved by Parliament had their attention been drawn to the problem: [1980] AC 74 at 107; R v Young [1999] NSWCCA 166; 46 NSWLR 681 at [9]-[15] (Spigelman CJ). 93 The present case is one in which amending legislation has apparently fallen short of its broader purpose, by repealing the Act establishing the Compensation Court, but failing to replace a reference to the Compensation Court in s 151A(3)(b) of the Workers Compensation Act 1987 (NSW) as it continues to operate in relation to coal miners. 94 Reference to Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation [1981] HCA 26; 147 CLR 297 is understandable in this context, as it concerned amending legislation which, when applied literally, gave rise to consequences which were described by various epithets in the judgments in the High Court, indicating that "the legislature could not have intended such an operation and that an alternative interpretation must be preferred": at 321 (Mason and Wilson JJ). The issue there was, however, far removed from the present difficulty. Cooper Brookes concerned provisions in the Income Tax Assessment Act 1936 (Cth) identifying circumstances in which a company which was the subsidiary of a holding company could claim tax losses which accrued in past years. A precondition to such a claim required that there had not been changes of a specified kind to the beneficial ownership of shares in the company. In seeking to take account of changes in the beneficial ownership of a holding company or companies interposed between the holding company and the subsidiary, the drafting technique adopted was to define the term "company" to include reference to a holding company. That had the unfortunate effect of varying the meaning of company, not only when considering beneficial ownership, but also when identifying the debt. The High Court held that such a result should be avoided, either by reading the definitional amendment as applicable unless a contrary intention appeared, or simply by reading it down so that it did not operate except in relation to the beneficial ownership of shares. This did not involve disregarding the language of the amending Act, nor reading in additional terms; rather it was a construction of the extent of the operation of the provision which was "justified on the footing that it is a necessary implication to be deduced from the legislative scheme considered as a whole": at 322 (Mason and Wilson JJ). As Spigelman CJ noted in R v Young, Cooper Brookes was not "authority for reading words into a statute" but was "a case in which words of general application were read down": at [22]. As his Honour further noted, "there is no warrant for supplying omitted words, unless the result of some such recognised technique of construction can be so described": at [32]. 95 It is usually the case that, in construing legislation which is ambiguous or obscure, a court will adopt language which departs from the words to be construed. However, it is rarely helpful to identify the permissible limits by reference to a particular mechanism, such as the inclusion of omitted words, or the disregarding of, or reading down of particular words. The exercise is legitimate if, by reference to purpose and context and, where appropriate, extrinsic material, it is possible to identify the intended meaning and, at least where the language adopted is not intractable, give effect to that meaning. 96 In the present case, the matter may be approached in one of a number of ways. One is to interpret the term "Compensation Court" in s 151A(3) as if it meant 'the Compensation Court or such other court as may be invested with jurisdiction to determine such claims'. Such an extended meaning (although unnecessary) could have been adopted at the time the section was enacted. Alternatively, it might have been adopted as the appropriate meaning when amending legislation abolished the Compensation Court without addressing the terms of s 151A(3) in its vestigial continued operation. 97 To recast the meaning as at the date of the enactment of s 151A is to infer that Parliament intended the provision to continue to operate in the event of then unenvisaged changes to the institutional structure of the courts. However, there is no warrant for imputing such an intention. There is a further difficulty in that such an intention must be presumed to have survived the repeal of the section, otherwise than in relation to claims by coal miners. 98 The alternative approach requires an implied intention which must arise at a later date. That suggestion, however, requires consideration of the statutory scheme within which s 151A(3) continued to operate. 99 The recent history of legislative provision in relation to workers' compensation and workplace injury damages claims is one of vacillation and revision. Much of that history was summarised by McColl JA in Humphreys v Mulco Tool & Engineering Pty Ltd [2006] NSWCA 355; 4 DDCR 389 at [15]-[41]. Relevantly for present purposes, significant changes were made on 27 November 2001, on the commencement of the Workers Compensation Legislation Further Amendment Act 2001 (NSW) (No 94) ("the 2001 Act No 94"). That Act replaced s 151A which provided deemed elections, with a preclusion of double recovery. The new provision envisaged that damages and compensation could be recovered in respect of an injury but provided for entitlements to compensation to cease and for repayment of weekly payments already made from the damages. 100 This provision (which might have been thought to be beneficial for workers) was part of a package of amendments to Pt 5 of the Workers Compensation Act. Other amendments imposed constraints on damages recoverable for workplace injuries. However, the Workers Compensation Legislation Amendment Act 2001 (NSW) (No 61) ("the 2001 Act No 61") also made significant amendments, including an amendment to s 151A. The bulk of the 2001 Act No 61 was devoted to the insertion of a new Ch 7 in the Workplace Injury Management and Workers Compensation Act 1998 (NSW), dealing with new claims procedures. Those procedures involved a new role for the Workers Compensation Commission. As a result, there were various consequential changes replacing references to the Compensation Court with "the Commission": Sch 6. One of the proposed amendments involved replacing s 151A(3)(b) with a provision in largely identical terms, but involving commencement of proceedings "in the Commission": Sch 6, [79]. 101 As noted by Beazley JA, this provision was repealed before it took effect, by the omission and replacement of s 151A: see 2001 Act No 94, s 3(2) and Sch 1.1 [2]. 102 The 2001 Act No 94 also inserted the savings and transitional provision excluding the operation of the 2001 amendments in respect of coal miners: see [22] above. The excluded amendments included those relating to common law damages, lump sum compensation, compensation for domestic assistance and commutation, together with all the (surviving) amendments made by the 2001 Act No 61. The effect (or intended effect) of this provision, so far as it affected s 151A, may have been quite limited. However, had the amendment to s 151A(3)(b) enacted in the 2001 Act No 61 taken effect, the transitional provision would have prevented the transfer of coal miner claims from the Compensation Court to the Commission. This appears to have been part of an on-going policy, because, when Pt 18C was added to Sch 6 of the Workers Compensation Act, dealing with provisions consequent on the enactment of 2001 amending Acts, it was expressly noted, for example, that transfer of claims from the Compensation Court to the Commission did not apply in respect of coal miner claims: see, cl 6A, Note. 103 There may be a basis for inferring that, if Parliament had turned its mind to the operation of s 151A in relation to coal miners, it would have substituted "District Court" for "Compensation Court". However, it is impossible to be sure about that. An alternative would have been to insert "Commission" (a reference to the New South Wales Workers Compensation Commission) as proposed by the amendment to s 151A in the 2001 Act No 61. Further, it could simply have abolished the requirement for an election in s 151A, which had the potential to work adversely against the interests of coal miners, as compared with other workers. That would have been consistent with the apparent policy in 2001 of treating coal miners more beneficially than other workers. A choice between these possibilities was a matter for the Parliament and not for the courts. 104 It follows that, in accordance with the principles enunciated in Jones v Wrotham Park, the approach taken by the District Court in this matter was not open. It is, therefore, unnecessary to decide whether if, in circumstances where a court could be certain that Parliament would have amended s 151A(3)(b) to replace "Compensation Court" with "District Court", it would be appropriate for the court to then construe the term "Compensation Court" to mean "District Court". That in itself would be a large question.

Conclusion 105 The orders made in the District Court were that the plaintiff's proceedings be struck out and that the plaintiff pay the defendant's costs of the proceedings and the motion. These orders should be set aside. The following orders should be made:

(1) Grant leave to appeal and treat the notice of appeal dated 12 August 2009 as properly instituting the appeal and otherwise waive compliance with the rules.

(2) Allow the appeal and set aside the orders made in the District Court.

(3) In lieu thereof, order that the defendant's motion be dismissed with costs.

(4) Order that the respondent pay the appellant's costs in this Court. **********

04/09/2009 - amended case name - Paragraph(s) coversheet

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