The Industrial Relations Secretary on behalf of Department of Justice (Corrective Services NSW) v Public Service Association and Professional Officers Association Amalgamated Union of New South Wales

Industrial Relations Commission (NSW)|2014-11-13|Before: Walton J, Harrison DP

Drake Personnel Ltd t/as Drake Industrial v Workcover Authority (NSW) (Inspector Ch'ng) (1999) 90 IR 432 Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division v Energy Australia (1999) 90 IR 311 Glen Robinson v Commissioner for Police, NSW Police Force [2013] NSWIRComm 1027 Grljak v Trivan Pty Ltd (1194) 35 NSWLR 82 Haines v Bendall (1991) 172 CLR 60 Hood Constructions Pty Ltd v Nicholas (1987) NSWLR 60 HSUeast v Director-General, Department of Finance and Services [2012] NSWIRComm 112 Integral Energy v Allen (2001) 107 IR 456 Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 Kovan Engineering (Aust) Pty Ltd v Gold Peg International Pty Ltd (2006) 234 ALR 241 Manser v Spry [1994] HCA 50; (1994) 124 ALR 539 Mills v Meeking (1990) 169 CLR 214 Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85 Newcrest Mining Ltd v Thornton (2012) 248 CLR 555 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112 Texts Cited: Harold Luntz, Assessment of damages for Personal Injury and Death: General Principles, LexisNexis Butterworths Australia Category: Principal judgment Parties: The Industrial Relations Secretary on behalf of the Department of Justice (Corrective Services NSW) (Appellant) Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (Respondent) Representation: Counsel: M P Cahill (Appellant) M Gibian (Respondent)

DECISION

The present workers' compensation scheme in New South Wales enables an injured worker to claim compensation for a workplace injury pursuant to Pt 3 of the Workers Compensation Act 1987 ('WC Act') whilst preserving a right, subject to some modifications, to recover an award of workplace injury damages at common law under Pt 5 of that Act. However, in circumstances where an injured worker recovers damages from their employer in respect of such an injury, that worker ceases to be entitled to further compensation under the WC Act, must pay back the amount of any weekly compensation payments already received and is no longer entitled to participate in any injury management program provided for under that Act or the Workplace Injury Management and Workers Compensation Act 1998 ('WIM Act'): s 151A(1) of the WC Act.
It was common ground that, following an injury to his left knee on or about 6 April 2008 which caused damage to his lumbar spine, Mr Darren Rudd executed a Complying Agreement with Corrective Services NSW ('CSNSW') (on whose behalf the present application is brought) under s 66A of the WC Act. That agreement entitled him to $13,750.00 with respect to a 10% loss in relation to his left lower extremity; $7,218.75 with respect to a 5% loss in relation to his lumbar spine; and $25,000.00 in relation to (lump sum) compensation pursuant to s 67 of Pt 3 of the WC Act. On the date that agreement was made, 25 October 2011, Mr Rudd was medically retired from his employment as a correctional officer after some 20 years of service (having previously been certified permanently unfit for his substantive position of Senior Correctional Officer on 28 June 2011).
Subsequently, on 18 April 2012, Mr Rudd sought work injury damages from CSNSW pursuant to Pt 5 of the WC Act. After mediation in the Workers Compensation Commission ('WCC') on 4 June 2013, the parties executed a document entitled 'Common Law Deed of Release' whereby CSNSW agreed to settle Mr Rudd's claim for the sum of $220,000.00 inclusive of costs but clear of the workers' compensation paid to that date. Thus, for the purposes of the WC Act and, in particular, s 151A thereof, Mr Rudd recovered work injury damages at common law (see s 149(1)).
On 23 September 2013, Mr Rudd sought reinstatement to his pre-injury position pursuant to s 241 of the WC Act. His request was refused on 16 October 2013. On 25 November 2013, the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ('PSA' or 'the respondent') filed an application for reinstatement on behalf of Mr Rudd under s 242 of the WC Act. The respondent to those proceedings challenged the jurisdiction of the Industrial Relations Commission of New South Wales ('the Commission'), then constituted by Commissioner Newall, to hear that application. For the purposes of that challenge, the parties accepted that Mr Rudd was an injured employee who was fit to return to pre-injury duties.
It may be noted that the appearance entered for the respondent below was for CSNSW. That is a division of the Department of Justice. Neither CSNSW nor the Department, so described, were the employer and thereby the proper respondent to the proceedings: see Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112 at [7] (per Basten JA). Both for the purposes of the proceedings below and here the relevant employer was the Industrial Relations Secretary who is the Secretary of the Treasury: Government Sector Employment Act 2013, s 49 and s 50. (I note the correct appellant has been nominated in the application for leave to appeal and appeal.) Hereafter, the Department of Justice, CSNSW or the present appellant shall be referred to as 'the appellant'.
The central legal issue which emerged in the interlocutory proceedings before Newall C was whether the Commission had jurisdiction to order the reinstatement of an injured worker (under Pt 8 of the WC Act) who had recovered modified workplace injury damages under Pt 5 of the WC Act. That issue crystallised in the form of an Amended Notice of Motion filed on 9 July 2014 which sought to strike out or permanently stay the application in the substantive proceedings. (In the impugned proceedings, the appellant (who was the applicant on the motion) also contended that Mr Rudd was precluded from seeking reinstatement by effect of the settlement executed by the parties. That contention was not pressed in the present proceedings.)
As to the central issue, the Commissioner found that the right to seek reinstatement under Pt 8 of the WC Act should not be removed without express or implied legislative intendment, particularly as Parliament had plainly considered exclusions in s 151A of that Act. Ultimately, the Commissioner dismissed the Amended Notice of Motion on 25 July 2014: Public Service Association and Professional Officers' Association Amalgamated Union of NSW (on behalf of Darren Rudd) v Corrective Services NSW [2014] NSWIRComm 1021 ('the impugned proceedings').
In the present proceedings, the appellant sought leave to appeal and appeal the impugned decision pursuant to s 187 and s 188 of the Industrial Relations Act 1996 ('IR Act'). The appellant contended that the Commissioner erred in his determination that the Commission had jurisdiction to order the reinstatement of an injured worker who had previously recovered modified workplace injury damages, which would allow an injured worker to retain the benefit of reinstatement after having recovered such damages. It was also contended that the Commissioner failed to give any or adequate reasons for his determination that the statutory right to reinstatement conferred by Pt 8 of the WC Act prevailed over legal principles and the policy evinced by the WC Act and the WIM Act whereby the recovery of workplace injury damages is intended to signal the end of all entitlements under the WC Act.
The questions raised by the appeal were particularised in the application for leave to appeal and appeal filed on 15 August 2014 by the Crown Solicitor in the following manner: (i) Whether the Workplace Injury Management and Workers Compensation Act, 1998 and/or the Workers Compensation Act, 1987 permit an injured worker to recover modified workplace injury damages under Part 5 of the Workers Compensation Act, 1987 and, following recovery of modified workplace injury damages under that act, then permit that worker to seek reinstatement pursuant to Part 8 of that Act? (ii) Whether it offends against principle to permit an injured worker to recover workplace injury damages pursuant to Part 5 of the Workers Compensation Act, 1987 and, having recovered workplace injury damages, to retain the right to apply for reinstatement pursuant to Part 8 of that Act? (iii) Whether, having regard to the history of the legislation, it was open to the Commissioner to determine that the parliament had expressly turned its mind to the exclusion of the right to reinstatement of Part 8 upon recovery of modified workplace injury damages under Part 5 of the Workers Compensation Act, 1987? (iv) Whether, having regard to the history of the legislation, the failure of the parliament to amend section 151A of the Workers Compensation Act, 1987 to exclude the benefit of reinstatement under Part 8 of the Act upon recovery of modified workplace injury damages under Part 5 of that Act is simply a casus omissus? (v) Whether the Commission has jurisdiction to order the reinstatement of the injured worker pursuant to Part 8 of the Workers Compensation Act, 1987 where the injured worker has recovered modified workplace injury damages pursuant to Part 5 of that Act?
The grounds of appeal were as follows: 1. His Honour erred in principle in determining that the Commission has jurisdiction to order the reinstatement of an injured worker pursuant to Pt 8 of the WC Act where the injured worker has recovered modified workplace injury damages pursuant to Pt 5 of that Act; 2. His Honour erred in principle in determining that the WC Act and/or the WIM Act permit an injured worker to retain the benefit of reinstatement pursuant to Pt 8 of the WC Act where the injured worker has recovered modified workplace injury damages under Pt 5 of that Act; 3. His Honour failed to give any or any adequate reasons for finding that the statutory right to reinstatement conferred by Pt 8 of the WC Act should prevail over the rule in Darley Mail Colliery Co v Mitchell (1886) 11 App Cas 127 (HL); the rule in Parry v Cleaver (1970) AC 1; and the policy evidenced by the WC Act and the WIM Act that the recovery of modified workplace injury damages is intended to bring an end to all entitlements under the WC Act, including the right to reinstatement under Pt 8 of that Act.

leave to appeal

The appellant made the following submissions in support of the Commission granting leave to appeal: (i) It is in the public interest that leave to appeal be granted so as to correct the jurisdictional error in the Commissioner's decision making process. (ii) It is in the public interest that leave to appeal be granted as the appeal raises important questions related to issues of workers compensation, recovery of workplace injury damages and reinstatement of workers. (iii) The appeal raises questions which go to jurisdiction. (iv) There are no relevant questions of fact in issue between the parties such that it is an appropriate time to determine the question of jurisdiction.
The respondent contended that leave to appeal should be refused. It noted that, generally, leave will be granted only where the appeal "raises substantial issues of principle or law or has wider implications for the jurisprudence of the Commission": Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 382 and Allchin v Commissioner of Police (No 2) (2007) 168 IR 170 at [14]. It was noted that raising a jurisdictional issue does not, of itself, establish a basis for the grant of leave: Knowles at 381 and Integral Energy v Allen (2001) 107 IR 456 at [13]. The respondent contended that the challenge to jurisdiction raised in the present proceedings was not founded upon any provision of the relevant legislation and that the question was adequately dealt with by the Commissioner at first instance. Additionally, the challenge as to the adequacy of reasons was said to raise no matter of general importance.
During the course of proceedings, the Commission determined to grant the appellant's request for leave to appeal. It is appropriate to state short reasons for that conclusion.
The aforementioned questions identified in the application for leave to appeal and appeal (as further ventilated in the submissions of the parties in the appeal) raised issues of principle and law concerning the operation of Pt 8 (and Pt 5) of the WC Act of such importance, in our view, that, in the public interest, leave should be granted.
Part 8 of the WC Act performs a significant public purpose illustrated by the title to the Part: "Protection of Injured Workers from Dismissal". More particularly, that Part provides a mechanism to assist an injured worker to return to work in his or her previous position or such other position for which he or she is fit: Bindaree Beef Pty Ltd v Riley [2013] NSWCA 305; (2013) 85 NSWLR 350 at [47]. Rights as to damages at common law for an injured worker and the resultant settlement of claims and obligations against an employer addressed in Pt 5 of the WC Act are also matters of significant public importance. This Part also provides an important mechanism in allowing an injured worker to recover damages as an alternative to continuing to receive compensation and rehabilitation.
These significant public purposes underline the importance of clarity in law as to the operation of the provisions and their interaction. There is a subsidiary matter bearing upon the public interest in granting leave to appeal. It is essential for persons entering upon arrangements for (or obtaining verdicts for) modified employee damages to have a clear understanding as to the implications of decisions of that kind and, in particular, whether taking such a course might have the effect of extinguishing rights under Pt 8.

Submissions of the Appellant

Mr M P Cahill, counsel for the appellant, made oral and written submissions which, when taken together, may be summarised as follows: 1. An injured worker is necessarily precluded from applying for reinstatement under Pt 8 of the WC Act in circumstances where that worker has recovered damages within the meaning of Pt 5 of that Act from an employer liable to pay compensation in respect of the same injury (see s 149 and s 151A(1)(a) of the WC Act). Thus, the previous recovery of modified common law damages by Mr Rudd is a complete answer to the application to be reinstated pursuant to s 243 of the WC Act made on his behalf. 2. It is apparent "by clear disentitling language" in the WC Act that the recovery of modified common law damages is intended to result in the cessation of entitlements under that Act. In addition, the following legislative indicia support the conclusion that the recovery of workplace injury damages under Pt 5 of the WC Act is inconsistent with the maintenance of a right to reinstatement pursuant to Pt 8 of that Act: 1. First, a worker is required to finalise any claim(s) for lump sum compensation prior to the commencement of proceedings for workplace injury damages. If any such claim remains unresolved upon recovery of damages the worker's entitlement to lump sum compensation is lost: see s151A(1)(a). 2. Secondly, upon recovery of workplace injury damages, a worker ceases to be entitled to recover any medical and related expenses whether claimed or unclaimed at the time of recovery otherwise payable under the Act: see s151A(1)(a). 3. Thirdly, a worker is not entitled to claim ongoing weekly benefits: see s151A(1)(a) 4. Fourthly, a worker is not entitled to participate in any injury management program (that is, rehabilitation and/or return to work programs) under the WC Act: see s151A(1)(c). 1. A "clear distinction" is drawn between statutory rights and the independent settlement of common law rights such that the recovery of workplace injury damages under Pt 5 of the WC Act is intended to be an alternative remedy to remaining in the worker's compensation scheme, with its attendant, on-going benefits. The fourth indicia noted above, in particular, is inconsistent with maintaining the right of an injured worker to seek reinstatement under Pt 8 of that Act. 2. Thus the election by an injured worker to recover common law damages, whether by way of settlement or judgment "has the effect of removing the worker from the statutory scheme and disentitling the worker to any further benefits or remedies under the scheme" (see Adams v Fletcher International Exports Pty Ltd [2008] NSWCA 238), regardless of the terms by which damages are recovered. 3. That conclusion is consistent with the policy and purpose of the workers' compensation scheme. In that respect, the reinstatement provisions in Pt 8 of the WC Act operate as an adjunct to the compensation and workplace injury management provisions under the WC Act and the WIM Act. In that legislative context, as Newall C observed in the impugned decision, it would be anomalous for the right to reinstatement to survive the recovery of common law damages (at [45]). 4. Further, "as a matter of simple logic" there would be "an overlap" between the recovery of common law damages, particularly damages for future economic loss, and an order for reinstatement. Thus, to retain both rights would be inconsistent with the following fundamental principles of the common law which have not been displaced by the legislation: 1. The 'once-and-for-all' rule, which confines recovery for all damages incident to one cause of action to a single award (see Darley Main Colliery Co v Mitchell (1886) 11 App Cas 127 (HL) ('Darley Main Colliery') per Lord Halsbury at 132). The learned author Harold Luntz (Assessment of damages for Personal Injury and Death: General Principles, LexisNexis Butterworths Australia, p 21) stated that "[t]here has never been any doubt that the once-and-for-all rule applies in Australia". The above quoted legislative indicia also demonstrate that recovery of workplace injury damages is intended to be a once-and-for-all remedy. 2. The 'universal' principle that an award of damages, whether the action be in tort or contract, is compensatory and that a plaintiff cannot, therefore, recover more than their loss (see Haines v Bendall (1991) 172 CLR 60 at 63). 3. The rule against 'double compensation'. As was observed in Boncristiano v Lohman [1998] 4 V.R. 82 [at 89] by Winneke P: The law, which now embraces equity, will not permit a plaintiff, whatever procedural device is used, to recover more than the damages which have been suffered, no matter the cause of action upon which he proceeds against the various defendants. 1. Thus, the nature of the remedy sought to be enforced is immaterial - one cannot recover more than they have lost. 1. As Mr Rudd has already recovered workplace injury damages, a reinstatement order pursuant to s 243 of the WC Act would place him in a better financial position than he would have been in but for his injury, whilst duplicating the financial burden placed upon CSNSW (see Manser v Spry [1994] HCA 50; (1994) 124 ALR 539 at [10] and [13]). That outcome would offend both the once-and-for-all rule and the compensatory nature of both workplace injury damages and the workers' compensation scheme. In Glen Robinson v Commissioner for Police, NSW Police Force [2013] NSWIRComm 1027 at [219] and [220], Newall C observed that it would be inequitable to permit an injured worker to both retain the benefit of monies paid, under a statutory scheme, in relation to a lost career and to have the benefit of an order for reinstatement to his pre-injury employment. 2. The WC Act does not contemplate the repayment of damages so as to avoid undermining the aforementioned principles in the event that an order for reinstatement is made (and nor would such a provision be expected because, as has been outlined above, the recovery of common law damages was intended to bring an end to an injured worker's rights under that Act). 3. The broader legislative history of the workers' compensation scheme strongly supports the above interpretation of s 151A of the WC Act. Regard should be had to that history in the interpretation of the scheme (see Interpretation Act 1987, s 33 and s 34 and CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; see also Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297; Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1 at 21 to +23; Schott Musik International GMBH & Co v Colossal Records of Australia Pty Ltd (1997) 38 IPR 1 at 6 per Hill J; and Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85 per McHugh J at 112). In particular, the following factors may be noted: 1. One of the defining features of the reforms introduced in 1987 by the WC Act was the abolition of the right of an injured worker to sue their employer at common law for damages in relation to injuries sustained in circumstances giving rise to an entitlement to the receipt of workers' compensation benefits under that Act. It was in that context that a right to reinstatement was introduced. At that time, the Act stated that no contract or agreement made could operate to annul, vary or exclude any provisions of that part. Thus, the entitlement to reinstatement was protected from being contracted out of (see Industrial Arbitration Act 1940, s 154J(2)). 2. However, in 1989, an injured worker's entitlement to sue their employer for damages at common law was restored retrospectively to 30 June 1987 by Schedule 1 of the Workers' Compensation (Benefits) Amendment Act 1989. Whilst there was some modification to the damages recoverable, it did not in any way impinge upon the fundamental common law nature of those rights (see Grljak v Trivan Pty Ltd (1194) 35 NSWLR 82). Thus, the rights were bound by all of the fundamental principles of the common law. 3. The restoration of this modified common law right required an election on the part of an injured employee between compensation under the Act and workplace injury damages. Upon recovery of damages under Pt 5 of the WC Act, an injured worker ceased to be entitled to any further compensation under that Act, including compensation already claimed but not paid (see s 151B(a) of that Act (now s 151A)). 4. It should be noted that at that time the definition of 'injured employee' was an employee who received an injury within the meaning of the Act (or a dust disease for which they were entitled to be compensated under the Workers' Compensation Dust Diseases Act 1942). To recover damages for economic loss, however, the relevant injury needed to be sufficiently serious to pass a threshold (s 151H). 5. In 1991, the provisions of Pt XV of the Industrial Arbitration Act were re-enacted in a similar form as Pt 7 of the Industrial Relations Act 1991. The provisions were subsequently moved to the IR Act in 1996, at which time the following variations were made: 1. There was no longer a provision which purported to prevent an injured worker from bargaining away their right to reinstatement as part of the recovery of modified common law damages (such as s 154J(2) or its successor s 234(2)). Thus, immediately prior to the transfer of the relevant provisions into the WC Act, there was nothing to prevent an injured worker from contracting out of their entitlement to reinstatement under Pt 7 of Ch 2 of the IR Act. At that time, a deed of release of the kind executed by the respondent upon settlement of his claim for damages would have constituted a complete answer to an application, post settlement, brought pursuant to that Part. It follows that, if the injured worker protections inserted into the WC Act are to have the same operation as the provisions contained in the IR Act, then either Pt 8 of the WC Act should be excluded from the operation of s 234 of the WIM Act or s 151A of the WC Act should be read as excluding an injured worker upon recovery of workplace injury damages from any entitlement to reinstatement under Pt 8 of that Act. 2. There was a new definition of an 'injured employee'. Section 91(1) of that Act, which is now s 240 of the WC Act, was in the following terms: For the purposes of this Part, an injured employee is an employee who receives an injury for which the employee is entitled to receive compensation under the Workers' Compensation Act 1987 or the Workers' Compensation (Dust Diseases) Act 1942. 1. That definition of an 'injured employee' introduced, for the first time, a reference to the employee's entitlement to receive compensation. Having regard to the change in definition, it is submitted that the current legislative scheme discloses an intention to directly preclude any entitlement to an order for reinstatement once an injured worker has recovered workplace injury damages under Pt 5 of the WC Act as the definition may be read to exclude workers who are not entitled to compensation due to the operation of s 151A of the WC Act. 1. The provisions of Pt 7 of the IR Act were moved to the WC Act in mirror form by the Industrial Relations Further Amendment Act 2006. The historical circumstances in which that transition occurred reveal that there was no intention to alter the effect of the provisions in consequence of the move. Certainly there is nothing to suggest an intention to change the "balance of the scheme" by leaving available the right to reinstatement of an injured employee. 1. The fact that a reinstatement order is not explicitly excluded by the legislation does not detract from the policy, which is clearly disclosed by the construction undertaken above, against the duplication of entitlements "such that, despite the failure of the legislature to advert to the issue of duplication in the circumstances of the present case, the dominant rule should be applied". 2. In that respect, where it can be established that an oversight has resulted in an error in the drafting of the legislation a court is obliged to correct the defect. As Dawson J noted in Mills v Meeking (1990) 169 CLR 214 at 235: …The approach required by s.35 needs no ambiguity or inconsistency; it allows a court to consider the purposes of an Act in determining whether there is more than one possible construction. Reference to the purposes may reveal that the draftsman has inadvertently overlooked something which he would have dealt with had his attention been drawn to it and if it is possible as a matter of construction to repair the defect, then this must be done. 1. Further, on rare occasions, such as the circumstances of the present matter, the rules of statutory interpretation permit a court to treat a statutory provision as containing additional words where those additional words will give effect to the legislative purpose (see Newcastle City Council). As was observed by McHugh JA (as he then was) in Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292: It is not only when Parliament has used words inadvertently that a court is entitled to give legislation a strained construction. To give effect to the purpose of legislation, a court may read words into a legislative provision if by inadvertence Parliament has failed to deal with an eventuality required to be dealt with if the purpose of the Act is to be achieved. 1. The application of Lord Diplock's test in Wentworth Securities Ltd v Jones [1980] AC 74 (applied in Newcastle City Council) for reading additional words into a legislative provision involve consideration of three factors which were described as follows: • First, the court must know the mischief with which the statute was dealing; • Second, the court must be satisfied that by inadvertence Parliament overlooked an eventuality which must be dealt with if the purpose of the legislation is to be achieved; and • 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. 1. Those considerations were elaborated upon as follows: 1. As to the first limb, the mischief which the statute was dealing with in the transfer of Pt 7 of the IR Act to Pt 8 of the WC Act was the apparent potential interference of Commonwealth legislation with the IR Act. 2. As to the second limb, in the context of the legislative history and underlying principles, the appellant submitted that "the only rational conclusion is that the apparent omission/failure to exclude an entitlement to reinstatement arises as a consequence of inadvertence on the part of the legislative draftsman". In Taylor v Centennial Newstan [2009] 26 NSWLR 379 the Court identified six categories where "rectifying construction" may be required and the present matter is plainly a case of casus omissus. As was observed in Hood Constructions Pty Ltd v Nicholas (1987) NSWLR 60 at 72 by Hope JA: The provisions of the Workers' Compensation Act show clearly enough a policy against duplication It does not appear why present case is not covered; it is probably a cassus omissus. Whatever the reason may be, I do not think that in the circumstances the fact that the Workers' Compensation Act deals with the question of duplication in other classes of case precludes the application of the dominant rule in any case with which it does not purport to deal. 1. That omission may be explained by the history of the legislation, whereby historically a settlement would have had the effect of depriving the subject worker of any entitlement to reinstatement. 2. As to the third limb, there are two possible solutions: 1. The adoption of a narrow interpretation of the definition of an injured worker set out in s 240(2) of the WC Act such that it excludes an injured worker, such as the respondent, who has recovered damages as defined in s 149(1) of that Act; or 2. The reading in the words "and to reinstatement" to s 151A(1) of the WC Act such that the sub-paragraph reads: …the person ceases to be entitled to any further compensation and to reinstatement under this Act in respect of the injury concerned (including compensation claimed but not yet paid)," [emphasis added] 1. This would not involve "an alteration of the language of the provision which is either 'too far reaching' or which is properly characterised as 'judicial legislation'" (see Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9 at [40]) as the words are consistent with the history and the substance of the legislation. 1. It is not contrary to principle to require an injured worker to surrender the right to reinstatement in consequence of recovering modified workplace injury damages, whether as part of a settlement or as a result of obtaining a judgment, where those damages are recovered in full satisfaction of both past and future economic loss. It is erroneous to characterise such a process as the removal of a right from a discrete class of workers as Newall C did in the impugned proceedings (see [44]) when it is, in fact, a voluntary bargaining decision taken by a competent adult in the context of the recovery of modified workplace injury damages. In this case, there is no suggestion or evidence that Mr Rudd did not intend to bargain away his right to reinstatement in return for the payment of modified workplace injury damages. 2. Finally, the decision of Newall C is attended by errors and inconsistencies of reasoning and, in that context, it is submitted that he failed to provide adequate reasons which is illustrative of underlying error(s) of principle. His failure to evaluate whether the significance of the underlying common law principles offset the failure of the Parliament to express by clear language any intention to encroach or abrogate those fundamental common law principles "indicates a fundamental misapprehension of the appellant's case". 3. The Commission should strike out the originating process in the reinstatement proceedings for want of jurisdiction. 4. In the alternative, the Commission should decline in its discretion to exercise its jurisdiction in relation to the subject proceedings pursuant to r 10.8(h) of the Industrial Relations Commission Rules 2009 ('IRC Rules') on the basis that the proceedings represent an abuse of the Commission's process. (It may be noted that the appellant does not concede that reliance upon r 10.8(h) represented raising a new issue on appeal but that it would seek leave, in any event, to be granted such relief on the basis that the appeal raises matters which can be disposed of on appeal and in relation to which all necessary facts are known.)

Submissions of the Respondent

Mr M Gibian, counsel for the respondent, made oral and written submissions which, when taken together, may be summarised as follows: 1. Upon proper construction, there is no legislative foundation for the proposition that an injured worker is necessarily precluded from applying for reinstatement under Pt 8 of the WC Act if they have received damages with respect to the injury. Thus, there is simply no provision in the WC Act, or indeed any other statute, which prevents Mr Rudd from applying for reinstatement pursuant to Pt 8 of the WC Act. 2. The established principles of statutory construction do not support reading the WC Act in a manner which creates such a limitation. To the contrary, the principles state that construction necessarily commences with a consideration of the ordinary and grammatical meaning of the words in the provision, having regard to their context and legislative purpose (see HSUeast v Director-General, Department of Finance and Services [2012] NSWIRComm 112 at [26] citing Australian Education Union v Department of Education and Children's Services (2012) 248 CLR 1 at [26]). Such considerations must be favoured over general assumptions made as to the purpose of the legislation. Whilst purpose may be considered, such considerations are limited, as was stated in Newcrest Mining Ltd v Thornton (2012) 248 CLR 555 at [70]: …historical considerations or extrinsic materials should not displace the clear meaning of statutory text, the language of which is the surest guide to what is called, metaphorically, the 'intention' of the legislature. 1. Further, no ambiguity has been identified or exists in the relevant statutory provisions so as to justify or require recourse to extrinsic materials (see Interpretation Act, s 34(1)). 2. In particular, as Newall C noted (at [41] of the impugned decision), s 151A sets out at some length the exclusions that arise from the receipt of damages in respect of a workplace injury. It expressly provides that if a person recovers damages, three consequences follow: (1) the person ceases to be entitled to compensation; (2) the amount of any weekly payments of compensation already made is deducted from the damages; and (3) the person ceases to be entitled to participate in any injury management program. The appellant does not point to any part of s 151A that is engaged by the application to the Commission and appears to accept that neither s 151A nor any other part of the legislative scheme "expressly excludes" the application of the reinstatement provisions once damages have been recovered. In those circumstances "it must be assumed that there was no intention to curtail that jurisdiction". 3. The right to apply for reinstatement would not be excluded without express provision. In Shergold v Tanner (2002) 209 CLR 126, for example, the High Court said (at [34]): ...the present case...attracts the general proposition that a law of the Commonwealth is not to be interpreted as withdrawing or limiting a conferral of jurisdiction unless the implication appears clearly and unmistakably. 1. That principle was applied to the question of whether the powers of the Commission to order the reinstatement of an injured worker were limited by other provisions within the WC Act in Spiers v Industrial Relations Commission (NSW) (2011) 81 NSWLR 348. The Court of Appeal found (at [89]): There should be recalled the well established principle that a power vested in a court should not be construed as subject to limitations not clearly to be seen: see for example Patton v Buchanan Borehole Collieries Pty Ltd (1993) 178 CLR 14 at 23 per Gaudron J; Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 205 per Gaudron J; Mansfield v Director of Public Prosecutions (WA) (2006) 226 CLR 486 at [10] per Gleeson CJ and Gummow, Kirby, Hayne and Crennan JJ; Burrell v The Queen (2008) 238 CLR 218 at [102] per Kirby J. The power vested in the Commission to order reinstatement should not lightly be construed as subject to the limitation that a necessary element must be determined elsewhere, rather than by the Commission as part of the exercise of the power. 1. Further, there is no basis upon which it could be concluded that the fact that s 151A of the WC Act makes no reference to reinstatement of injured worker provisions is legislative oversight. There is simply no intention to preclude an injured worker making a reinstatement application as a result of the recovery of modified common law damages. Even if there were some oversight, a court is not permitted to fill a gap in legislation by itself implying into the legislation that which has been omitted (see Marshall v Watson (1972) 124 CLR 640 at 649; Taylor v Centennial Newstan Pty Ltd at [41]). In that sense the appellant's argument is, in essence, one for "law reform, that is, the legislation should say something it does not say". 2. In addition, Pt 8 of the WC Act must properly be regarded as beneficial legislation that provides protection to injured workers and should be construed accordingly: Chau v Visy Board Pty Ltd [2012] NSWIRComm 101 at [41]. The provisions should be given as broad operation as their words reasonably permit (and certainly should not be subject to a strained interpretation whereby their application is circumscribed). 3. In any event, even if it were permissible to refer to the history of the legislation, such reference would lead to the conclusion advanced by the respondent, as no prohibition previously existed on an injured worker making an application for reinstatement if they had recovered workplace injury damages. In fact, when the right to claim common law damages was reintroduced in 1989 and when the current form of the provisions was developed in 2001 the exclusions specified by the Parliament in s 151B and s 151A respectively did not include the right to apply for reinstatement. The latter is of particular relevance as s 151A of the WC Act was drafted at a time when rights to both common law damages and reinstatement were available. 4. The "fundamental provisions of the common law" relied upon by the appellant could not overcome the clear words of the legislation and, in any event, are not engaged by the present application as the application for reinstatement does not seek to recover loss arising from the injury suffered by Mr Rudd and does not constitute an attempt to obtain double or further compensation. Mr Rudd obtained a settlement based upon the medical evidence available at the time of his medical retirement. Whilst it is impossible to ascertain what, if any, portion of that settlement was attributable to future economic loss, it is immaterial. Mr Rudd's damages claim was resolved once and for all at that date, despite the fact that, as in any case of damages for projected loss, he may have ultimately suffered a greater or lesser amount of loss. In that respect, it is actually the appellant who is seeking to 'renege' on the settlement because Mr Rudd has made a better recovery than was anticipated at the time. 5. Correspondingly, no additional financial burden would be imposed on the employer upon an order for reinstatement. If reinstatement occurs, the payment of wages for future work the appellant requires performed could not constitute a hardship. There can be no legitimate basis for an employer to refuse to reemploy someone simply because they had previously pursued a damages claim for injury; to do so, in fact, may be victimisation. Further, even if Mr Rudd was being over compensated for his loss or CSNSW twice burdened, that fact would not deprive the Commission of its jurisdiction to hear and determine the matter on its merits. 6. The appellant's contentions in respect of the definition of 'injured worker' in s 240 of the WC Act, which, it may be noted, were not advanced at first instance, cannot be accepted. The definition is not temporal such that an injured worker will cease to be an injured worker once their entitlement to compensation is exhausted (see Australian Salaried Medical Officers Federation v Central Sydney Area Health Service (2005) 147 IR 56 at 75 and 76). Logically, an injured worker who is applying to be reinstated is fit for work and is not, therefore, entitled to workers compensation at that time. Thus, the appellant's reading of the definition would have the effect of excluding the very workers whom the provision is intended to assist. 7. As to the alleged failure of Newall C to give reasons, it must be noted that a decision-maker is "not required to mention every fact or argument relied on by the losing party as relevant to an issue" (see Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598 at [62]; Kovan Engineering (Aust) Pty Ltd v Gold Peg International Pty Ltd (2006) 234 ALR 241 at [45]) or expose every step of his or her chain of reasoning (see Drake Personnel Ltd t/as Drake Industrial v Workcover Authority (NSW) (Inspector Ch'ng) (1999) 90 IR 432 at 459). Neither is it necessary for reasons to be elaborate or lengthy (see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 271 and 272). Nevertheless, Newall C set out the contentions advanced by the appellant in some detail and explained his reasons for rejecting the same. There is, thus, no substance to the submission that his reasons were inadequate. 8. The appellant sought to raise a new point on appeal, absent any reference in the application, namely, that the Commission should decline to exercise its jurisdiction in relation to the proceedings pursuant to r 10.8(h) of the IRC Rules. In the absence of any contention of error on the part of Newall C, the appellant cannot now ask the Commission to decline to exercise jurisdiction in the proceedings. It is fundamental that a party is bound by the conduct of its case: University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483. A party will not be permitted to raise new matters on appeal, particularly where the issue sought to be raised might have been answered by the filing of evidence: Coulton v Holcombe (1986) 162 CLR 1 at 7 to 9 and Whisprun at [50] and [51]. In any event, there is no basis upon which the Commission would do so at a preliminary stage. If the Commission possesses a general discretion to decline to grant relief, it could only do so having had the opportunity to hear the evidence in the proceedings and assess the full circumstances on the case given that there are no grounds upon which the Commission would decline to even consider exercising its jurisdiction in this matter (see Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division v Energy Australia (1999) 90 IR 311). Finally, the substantive proceedings are not an abuse of process in any event as, for the reasons above discussed, reinstatement would not amount to any double benefit.

Legislation

It is convenient to outline the following provisions of the WC Act: Part 5 149 Definitions (1) In this Part: damages includes: (a) any form of monetary compensation, and (b) without limiting paragraph (a), any amount paid under a compromise or settlement of a claim for damages (whether or not legal proceedings have been instituted), but does not include: (c) compensation under this Act, or (d) additional or alternative compensation to which Division 8 of Part 3 applies, or (e) an award of compensation or direction for compensation under Part 2 or Part 4 of the Victims Compensation Act 1996, or (f) a sum required or authorised to be paid under a State industrial instrument, or (g) any sum payable under a superannuation scheme or any life or other insurance policy, or (h) any amount paid in respect of costs incurred in connection with legal proceedings, or (i) damages of a class which is excluded by the regulations from this definition. (2) A reference in this Part to compensation payable under this Act includes a reference to compensation that would be payable under this Act if a claim for that compensation were duly made. 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 (except to the extent that subsection (2), (3) or (4) covers the case): (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. (2) If damages in respect of an injury are recovered from the employer liable to pay compensation under this Act, pursuant to a cause of action that survives for the benefit of the estate of a deceased worker under the Law Reform (Miscellaneous Provisions) Act 1944, the following amounts of compensation are to be repaid out of the estate of the deceased worker to the person who paid the compensation: (a) the amount of any weekly payments of compensation already paid in respect of the injury concerned, (b) the amount of any permanent impairment compensation and pain and suffering compensation already paid in respect of the injury concerned. (3) If damages are recovered in an action under the Compensation to Relatives Act 1897 in respect of the death of a worker from the employer liable to pay compensation under this Act in respect of the death: (a) the amount of any compensation under Division 1 of Part 3 paid in respect of the death 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 (b) a person recovering those damages ceases to be entitled to any further compensation under this Act in respect of the death of the worker. (4) If a person recovers motor accident damages in respect of an injury from the employer liable to pay compensation under this Act: (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 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. … Part 8 240 Definitions … (2) For the purposes of this Part, an injured worker is a worker who receives an injury for which the worker is entitled to receive compensation under this Act or the Workers' Compensation (Dust Diseases) Act 1942. 242 Application to Industrial Relations Commission for reinstatement order if employer does not reinstate (cf IR Act, s 93) (1) If an employer does not reinstate the worker immediately to employment of the kind for which the worker has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the worker), the worker may apply to the Industrial Relations Commission for a reinstatement order. (2) An industrial organisation of employees may make the application on behalf of the worker. (3) The Industrial Relations Commission may not make a reinstatement order, except in special circumstances, if the application to the employer for reinstatement was made more than 2 years after the injured worker was dismissed. 243 Order by Industrial Relations Commission for reinstatement (cf IR Act, s 94) (1) The Industrial Relations Commission may, on such an application, order the employer to reinstate the worker in accordance with the terms of the order. (2) The Industrial Relations Commission may order the worker to be reinstated to employment of the kind for which the worker has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the worker), but only if the Commission is satisfied that the worker is fit for that kind of employment. (3) If the employer does not have employment of that kind available, the Industrial Relations Commission may order the worker to be reinstated to employment of any other kind for which the worker is fit, being: (a) employment of a kind that is available but that is less advantageous to the worker, or (b) employment of a kind that the Commission considers that the employer can reasonably make available for the worker (including part-time employment or employment in which the worker may undergo rehabilitation). (4) If the Industrial Relations Commission orders the worker to be reinstated, it may order the employer to pay to the worker an amount stated in the order that does not exceed the remuneration the worker would, but for being dismissed, have received after making the application to the employer for reinstatement and before being reinstated in accordance with the order of the Commission.
The relevant provision of the WIM Act is in the following form: 234 No contracting out (cf 1926 s 45; 1987 s 272) This Act and the 1987 Act apply despite any contract to the contrary.

Grounds 1 and 2

Due to the interrelation between grounds 1 and 2 of the appeal, both requiring the interpretation of Pt 5 and Pt 8 of the WC Act, it is convenient to deal with these grounds together.

Principles of statutory interpretation

Prior to examining the issues surrounding the dispute between the parties, it is useful to reiterate the principles surrounding statutory interpretation. Although a well laid course, a Full Bench of this Commission recently discussed the synthesis of the modern approach in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWIRComm 23 at [101] to [144]. It is unnecessary to restate that analysis. For present purposes, the seminal judgments of the New South Wales Court of Appeal, particularly the comments of the Chief Justice in Rail Corporation New South Wales v Brown [2012] NSWCA 296 ('Brown'), provide guidance as to the correct path this Commission should take when examining the language of the provisions giving rise to the dispute.
In Brown, the Chief Justice stated, by reference to High Court authority: [39] As has recently been pointed out by the High Court on a number of occasions, the process of construction begins with the construction of the ordinary and grammatical meaning of the words in question, having regard to their context and legislative purpose: Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 285 ALR 27 at [26]; Roadshow Films Pty Ltd v iiNet [2012] HCA 16; (2012) 286 ALR 466 at [22]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 at [41], [45]-[48]. [40] Further, although the legislative purpose in enacting the provision and the mischief to be remedied are factors which are to be taken into account in construing the provision in question (see the cases cited above; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Interpretation Act 1987, s 33, s 34) it is not for a court to construe its own idea of a desirable policy, impute that to the legislature and then characterise it as a statutory purpose: Australian Education Union at [26] and the cases there cited; Alcan at [46].
As noted by his Honour, the High Court has recently emphasised that the correct starting point in statutory interpretation requires a close examination of the text itself. For example, Chief Justice French recently cited Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 382, [71] when his Honour observed (at [24] to [26]): In any event, the task of a court construing a statutory provision is to give meaning to every word in the provision. It is a long-established rule of interpretation 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': Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; (2012) 251 CLR 1 at [41] (emphasis added).
Reference should also be made to the judgment of the High Court in Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross (Matter No S417/2011) [2012] HCA 56; (2012) 248 CLR 378 and the principles expounded therein. Specifically, the determination of the purpose of a statute, or particular provision of a statute, may be found from express statements of purpose in the statute and inferences drawn from its text and structure. Statutory construction requires deciding the legal meaning of a provision by reference to the language of the statute, viewed as a whole, and in that respect, the context and general purpose of the provision. French CJ and Hayne J (Kiefel J agreeing), stated: [24] The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky, '[t]he 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'. [Emphasis added.] That is, statutory construction requires deciding what is the legal meaning of the relevant provision 'by reference to the language of the instrument viewed as a whole', and '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'. [25] Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure. Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted. It is important in this respect, as in others, to recognise that to speak of legislative 'intention' is to use a metaphor. Use of that metaphor must not mislead. '[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have'. [Emphasis added.] … The search for legal meaning involves application of the processes of statutory construction. The identification of statutory purpose and legislative intention is the product of those processes, not the discovery of some subjective purpose or intention. [26] A second and not unrelated danger that must be avoided in identifying a statute's purpose is the making of some a priori assumption about its purpose. The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions. As Spigelman CJ, writing extra-curially, correctly said: 'Real issues of judicial legitimacy can be raised by judges determining the purpose or purposes of Parliamentary legislation. It is all too easy for the identification of purpose to be driven by what the particular judge regards as the desirable result in a specific case.' [Emphasis added.] And as the plurality said in Australian Education Union v Department of Education and Children's Services: 'In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose'. [Citations and footnotes omitted]
The above principles form the premise on which this decision goes forward.

The decision below

The Commissioner at first instance observed, at [41] and [42], that: [41] … Section 151A goes to some length and detail in setting out exclusions that arise on the receipt of workplace injury damages. Access to the ability to apply for reinstatement under s 241, and access to the jurisdiction conferred by s 242, is patently not among those exclusions. [42] Equally, s 242 itself does not provide that a person who had received workplace injury damages is excluded from the jurisdiction. The words of s 242 convey no limitation of that sort, expressly or impliedly. Part 8 as a whole does not lead to any view of that sort.
While noting that the operation of the two provisions created a situation that appeared anomalous (at [45]), the Commissioner held that there was nothing to warrant the reading in of an exclusion "which is simply not there" (at [48]).
Commissioner Newall also placed reliance on his construction of Pt 8 as beneficial legislation, referring, in that respect, to Chau v Visy Board Pty Ltd [2012] NSWIRComm 101 at [41].
The Commissioner held (at [40] to [46]) that the right of an injured worker to make application for reinstatement under the WC Act could not be taken to be removed in the absence of an "express, or even implied" legislative statement to that effect. As a consequence, the Commissioner found that the WC Act permits an injured worker to retain the benefit of reinstatement pursuant to Pt 8 where the injured worker has recovered modified workplace injury damages under Pt 5 of that Act.

Issues on Appeal

Both parties' submissions focused on whether the recovery of workplace injury damages under Pt 5 expressly and necessarily excluded that person from the operation of Pt 8 of the WC Act. The parties' engagement with that issue has been explored in detail earlier in this decision.
In summary, the appellant submitted that it was not the intent of the legislature for an injured worker to become entitled to recover both workplace injury damages under Pt 5 of the WC Act and to retain an entitlement to seek reinstatement to his or her pre-injury employment under Pt 8. The appellant contended that the reference to "is entitled to receive compensation under this Act" in the definition of 'injured worker' in Pt 8, when read by reference to the operation of s 151A(1)(a), excluded an injured worker who has recovered damages. An injured worker who has recovered damages would, therefore, not be able to apply for reinstatement under Pt 8 of the WC Act. As such, the Commission lacked the necessary jurisdiction to order Mr Rudd's reinstatement.
Alternatively, the appellant proposed that the failure of the legislature to include an express exclusion to this effect was a casus omissus and submitted that this is one of the rare occasions where a court is required to 'read in' additional words. The appellant proposed two alternative approaches that this Commission could take to 'read in' words so as to give effect to the intention of the legislature while maintaining the integrity of the statutory regime.
The submissions of the respondent largely embraced the decision of the Commissioner. That is, it was submitted that the WC Act does not have any intimation to the effect that a person who has received workplace injury damages is excluded from the jurisdiction, nor do the words of s 151A or s 242 convey this limitation, expressly or impliedly. In particular, the respondent submitted, at [18], that Mr Rudd: … is an "injured worker" in that he received an injury for which he was entitled to compensation under the Workers Compensation Act. That is so notwithstanding the subsequent receipt of settlement monies following the commencement of proceedings seeking common law damages.
This contention was not the subject of significant explanation or elaboration. The respondent also submitted that there was is no basis upon which it could be concluded that the fact s 151A makes no reference to the reinstatement provisions in Pt 8 was an oversight, or casus omissus, of the legislature.
The Commissioner was of the opinion that "The right to reinstatement is, on the face of s 242, expressly granted to all injured workers who have been dismissed without limitation". However, the decision of the Commissioner failed to consider the definition of 'injured worker' prescribed in s 240(2) of the WC Act and whether that definition evidences an expressed statutory intent to exclude from its operation a person who has recovered damages under that Act.
The crux of the legal dispute that is found in the sophisticated submissions of the parties can ultimately be distilled, in our view, to a certain question, being whether Mr Rudd is an 'injured worker' for the purposes of Pt 8 so as to enact the jurisdiction of the Commission under s 243 of the WC Act. As earlier noted, the parties took similar tracks to resolve this question, yet came to differing conclusions on the intent of the legislation and the interaction between Pt 5 and Pt 8 of the WC Act. There appears to be no dispute that Part 5 does not, in and of itself, prevent a worker who recovers damages from accessing the provisions in Pt 8. The parties' respective contentions as to the expressed terms of Pt 8 are less clear. However, both recognise that a determination of the interaction between these two Parts of the WC Act is central to the resolution of this matter.
The joinder of issues, so described, is central to the resolution of the issues of construction in this matter. That is, whether s 151A, when read with the definition of 'injured worker' contained in s 240(2), evidences an expressed intention to exclude persons who have received damages from the availability of the reinstatement provisions.
The proper resolution of this question is not without difficulty. Based on our analysis of the legislation and the reasons that follow, we consider that the Commissioner's approach was based upon an erroneous construction of the WC Act. We have come to this conclusion based on a literal reading of the text in light of its context, history, purpose and compliance with common law principles. Our analysis of each is addressed seriatim.

Is Mr Rudd an 'injured worker' for the purposes of Pt 8 of the WC Act?

The literal meaning of the provisions

The Commissioner and the parties acknowledged that modern statutory construction necessarily commences with a consideration of the ordinary and grammatical meaning of the words in the provision, having regard to their legislative context and purpose: Australian Education Union v Department of Education and Children's Services (2012) 248 CLR 1 at [26]. That is, the language of the text is the "surest guide to what is called, metaphorically, the 'intention' of the legislature": Newcrest Mining Ltd v Thornton (2012) 248 CLR 555 at [70]. When considering the "intention"' of the legislature, this means an attributed intention based on inferences drawn from the statute itself, rather than the construct of "'intention" as is used to describe that in individual human beings: NAAV v MI (2002) 123 FCR 298 per French J.
While a literal approach calls for an examination of the text of the provision, given the interaction between s 151A and the definition of 'injured worker' in Pt 8, it is convenient to briefly outline the relevant provisions of the WC Act that tie these provisions together. This is consistent with the aforementioned discussion of authority that requires the WC Act to be read as a whole.
Part 2 of the WC Act is headed "Compensation - liability". Under s 9, an employer is liable to pay compensation to workers who have received an injury. Injury is defined in s 4. For the purposes of the current issue, there is no dispute that Mr Rudd received an injury for which he was entitled to compensation by his employer.
Part 3 of the WC Act is headed "Compensation - benefits" and outlines the various kinds of compensation/benefits, including provisions for weekly compensation; compensation for medical, hospital and rehabilitation expenses; and compensation for non-economic loss.
Part 5 of the WC Act is headed "Common law remedies". Section 149(1)(c) of the WC Act defines 'damages' as expressly excluding "compensation under this Act". Section 149(2) also notes that "A reference in this Part to compensation payable under this Act includes a reference to compensation that would be payable under this Act if a claim for that compensation were duly made". It is not disputed that Mr Rudd received damages within the meaning of Pt 5 of the WC Act in relation to his workplace injury.
The language in Pt 5 of the WC Act clearly reveals its terms. As noted by the Commissioner at [41], "Section 151A goes to some length and detail in setting out exclusions that arise on the receipt of workplace injury damages". Subsection (1)(a) expressly provides that a person who has recovered damages "ceases to be entitled to any further compensation under this Act in respect of the injury concerned", except to the extent that subs (2), (3) or (4) apply.
Furthermore, s 151A prescribes that the amount of any weekly payments of compensation already paid is to be deducted from the damages to be paid (s 151A(1)(b)) and, upon the recovery of damages, the person ceases to be entitled to participate in any injury management program provided for under the WC Act (s 151A(1)(c)). That is, s 151A expressly curtails compensation benefits provided for in Pt 3 of the WC Act.
Part 8 of the WC Act is entitled "Protection of injured workers from dismissal". Section 243 vests power in the Commission to make an order for the reinstatement of a worker on such an application from the employer. While the term 'worker', rather than 'injured worker' is used in that provision, the term is qualified by s 241: Spiers at [24].
It is convenient to repeat the provisions of s 240 and s 241. Section 241 provides: (1) If an injured worker is dismissed because he or she is not fit for employment as a result of the injury received, the worker may apply to the employer for reinstatement to employment of a kind specified in the application.
'Injured worker' is defined in s 240, which provides: (2) For the purposes of this Part, an injured worker is a worker who receives an injury for which the worker is entitled to receive compensation under this Act or the Workers' Compensation (Dust Diseases) Act 1942.
The words giving rise to the ambiguity between the parties in the definition are "is entitled to compensation". As noted above, statutory interpretation requires meaning to be given to every word in the provision: Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; (2012) 251 CLR 1 at [41]. Furthermore, the provision must be read in light of its statutory context: Carr at [78], keeping in mind that a legislative instrument's provisions must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals: Alphapharm at [70].
In order to come within the jurisdiction of Pt 8 of the WC Act, a person must be an 'injured worker', being a person who "is entitled to receive compensation under this Act …". However, s 151A(1)(a) provides that once a person recovers damages "the person ceases to be entitled to any further compensation under this Act".
A literal reading of Pt 5 and Pt 8 produces the result that a person who has recovered damages no longer falls within the definition of 'injured worker' for the purposes of Pt 8. That person is necessarily excluded from its operation as the Part applies only to those workers who fall within the definition of 'injured worker' as contained in s 240(2).
This literal reading is supported by the judgment of the New South Wales Court of Appeal in Speirs v Industrial Relations Commission of New South Wales [2011] NSWCA 206; (2011) 81 NSWLR 348, in which the Court considered what is meant by 'entitled to' for the purposes of Pt 8 of the WC Act. While Speirs considered an issue different to the present question, the Court of Appeal's judgment provides helpful guidance as to the meaning of 'entitled to' in s 240(2) of the WC Act. The Court of Appeal recognised that: The expression 'liable to pay compensation to the worker' and the expression 'entitled to receive compensation' are equivalents, two sides of the same coin, each expressing compensation being payable: at [61].
Hence, whilst the entitlement to compensation is a right subsisting in law when there has been an injury satisfying s 4 and s 9A of the WC Act (see Speirs at [85]), the legislation expressly extinguishes this right once a person receives damages under Pt 5 as they are no longer entitled to receive, nor is the employer liable to pay, compensation. The intention to extinguish any further compensation rights of a person who has received damages under the WC Act is clearly evidenced by the text of Pt 5: s 151A(1)(a). This intention is reinforced by the wording of the legislature in Pt 8, limiting the application of the Part to only those persons who are "entitled to compensation".
On this basis, the Commissioner, in our opinion, erred in reaching the conclusion that the WC Act is innocent of any intimation to the effect that an injured worker is necessarily precluded from applying for reinstatement under Pt 8 of the WC Act if they have received damages. Further, we cannot accept the respondent's submission that, as s 151A does not expressly exclude the application of the reinstatement provisions in Pt 8 once damages have been recovered, then it must be assumed there was no intention to curtail that jurisdiction. This submission would require the Commission to construe and apply a purpose into the legislation that is not apparent from its text, contrary to Brown.
We consider that the submission of the appellant, being that it is apparent by clear disentitling legislation in the WC Act that the recovery of common law damages is intended to result in the cessation of entitlements under that Act, is correct. That the intent of parliament was for s 151A to prevent a person who has received damages from applying for reinstatement under Pt 8 is further evidenced by the context of the provisions and the history of the provision.

The Context of the Provisions

In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, the High Court, at [34], referred to Lord Herschell's comment in Colquhoun v Brooks (1889) 14 App Cas 493 at 506, where his Honour noted: It is beyond dispute, too, that we are entitled and indeed bound when construing the terms of any provision found in a statute to consider any other parts of the Act which throw light upon the intention of the legislature and which may serve to shew that the particular provision ought not to be construed as it would be if considered alone and apart from the rest of the Act.
As we have already outlined, other provisions in the WC Act necessarily influence the construction of 'injured worker' in Pt 8 of that Act. Sections 9AC and 58 also help to 'throw light' upon the intention of the legislature in construing Pts 5 and 8.
Section 9AC is headed "Person not to be compensated twice" and provides that, if a person receives compensation under the WC Act, then receives compensation under the laws of a place other than NSW for the same matter, the person from whom compensation is received under the WC Act can sue and recover the amount of compensation paid or the amount of compensation received by the person under the laws of the other place.
Section 58 is entitled "Refund of weekly payments paid after return to work etc", and provides that, if a worker returns to employment or has a change in employment that affects their earnings, the Commission may order the worker to refund the compensation payments to the person who paid the compensation.
These provisions, when read in conjunction with s 151A(1)(b), indicate, in our view, that the legislature was concerned to ensure that a person did not receive double compensation. Further, it is pertinent to note that the WC Act does not contemplate repayment of damages should a worker be reinstated under Pt 8 after the receipt of common law damages. To infer that the intention of the legislature was to allow a person to recover damages from their employer, including damages for future economic loss, then subsequently be able to obtain an order to be reinstated by that employer, as well as have the potential of obtaining an order for payment under s 243(4), would be contrary to the intention of the legislature as evidenced by ss 9AC, 58 and 151A(1)(b) of the WC Act.
Both the Commissioner and the respondent also placed emphasis on Pt 8 being beneficial legislation, noting that it should be construed as such: Chau v Visy Board Pty Ltd [2012] NSWIRComm 101 at [41]. We agree that this requires Pt 8 to be given a liberal construction rather than a "literal or technical" construction: Norrie v NSW Registrar of Births, Deaths and Marriages [2013] NSWCA 145 at [73]. However, the task remains one of statutory construction: IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 12. The Commission is not at liberty to give Pt 8 a construction that is unreasonable or unnatural, particularly not one that is contrary to common law principles and other provisions in the WC Act. As previously noted, the decision in Speirs evidences that a wide interpretation must be taken of the words "entitled to compensation" in the definition of 'injured worker'. However, to infer that the words "entitled to compensation" include persons who have been expressly determined by the WC Act to have "cease[d] to be entitled to any further compensation under this Act" (as per the operation of s 151A(1)(a)) would be an unreasonable and unnatural construction and one that is not aligned with other provisions in the WC Act.
In addition to the terms within the WC Act itself, the Commissioner was correct in recognising that the WC Act must be construed with the WIM Act as if it formed part of that Act: s 2A(2) the WC Act; s 60(2) WIM Act.
In Speirs, attention was drawn to s 60(1) of the WIM Act, which provides: "60 Liability, benefits, common law and other matters (1) Provisions relating to a worker's entitlement to compensation, the benefits payable, common law remedies and other matters are contained in the 1987 Act."
Section 60(1) draws a distinction between a worker's entitlement to compensation and common law remedies, such as damages. This evidences an intention to separate a worker's entitlement to compensation from an entitlement to common law remedies.
We note, for completeness, that, in his decision, the Commissioner also referred to s 234 of the WIM Act that provides that both the WIM Act and the WC Act apply, despite any contract to the contrary. His Honour found that "a settlement does not operate to deny the injured worker access to the reinstatement jurisdiction" (at [59]). However, we consider this analysis is misplaced. The dispute between the parties does not require the Court to examine the terms of the contract or deed of damages to determine if it contains a "contracting out" clause and the legality of such a clause. Rather, the Commission is being asked to determine the legislative effect of the receipt of damages under the WC Act and whether, by virtue of the language used in that Act, a person is then removed from the operation of other provisions in the legislation.

The History of the Provision

While historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text (Alcan at [47]), both parties undertook some analysis of the legislative history of the provisions to support their submissions as to the meaning of the text. The arguments of the parties on this point are outlined above in [17] and [18] and it is unnecessary to restate their analysis here.
The legislative history of Pt 8 of the WC Act was fully and helpfully considered by the Full Bench of the Commission in Speirs v Springvale Coal Pty Ltd [2010] NSWIRComm 30. While the decision of the Full Bench was overturned by the Court of Appeal, the Court, at [112] to [127], noted the accuracy and usefulness of the history as outlined by the Commission, being: Legislative history of Pt 8 of the 1987 Act 1940 IA Act [112] The provisions for protection of injured employees were first introduced by the 1987 IA Amendment Act. As earlier mentioned, the 1987 Act emerged from cognate bills including the Workers Compensation Bill 1987. Part XV of the 1940 IA Act was entitled "Protection of Injured Employees". That Part provided that the dismissal of "an injured employee" would, in the circumstances specified in s 154B, constitute an offence and an "injured employee" may apply for reinstatement to his or her former position if dismissed in the circumstances described in s 154C. [113] Section 154B was in the following terms: (1) An employer shall not dismiss an injured employee after the commencement of this section solely or principally because the employee is not fit for employment in a position as a result of the injury received, unless - (a) at least 6 months have elapsed since the employee first became unfit for employment; or (b) the employer believes (at the time of dismissal) on the basis of a certificate issued by a legally qualified medical practitioner that the employee will be permanently unfit for employment in the position concerned. Penalty: $10,000. (2) It is a defence to a prosecution under this section if the employer satisfies the court that at the time of dismissal the employee would not undergo a medical examination reasonably required to determine fitness for employment. (3) This section applies even if the employee became unfit for employment before the commencement of this section. [114] Section 154C was expressed thus: (1) If an injured employee is dismissed because he or she is not fit for employment in a position as a result of the injury received, the employee may apply to the employer for reinstatement to his or her former position. (2) An injured employee's former position is - (a) the position from which the employee was dismissed; or (b) if the employee was transferred to a less advantageous position before dismissal, the position which the employee held when he or she became unfit for employment, at the option of the employee. (3) The employee must produce to the employer a certificate given by a legally qualified medical practitioner to the effect that the employee is fit for employment in the former position. (4) This section does not apply to a dismissal which occurred before the commencement of this section. [115] The then Industrial Commission's reinstatement powers were provided in s 154D as follows: (1) In this section -"appropriate tribunal" means - (a) the commission; or (b) a conciliation committee to which is assigned the relevant industry or calling. (2) If an employer refuses or fails under section 154C to reinstate an employee forthwith, the employee may apply to an appropriate tribunal for a reinstatement order. (3) The secretary of an industrial union of which the employee is a member may make the application on behalf of the employee. (4) On such an application, the appropriate tribunal may order the employer to reinstate the employee, in accordance with the terms of the order, if the tribunal is satisfied that the employee is fit for employment in the position concerned. [116] The foundation stone for these obligations or rights was the definition of an "injured employee" in s 154. [117] Section 154 provided as follows: In this Part - "injured employee" means an employee who receives an injury, being: (a) an injury within the meaning of the Workers Compensation Act 1987; or (b) a dust disease for which the employee is entitled to receive compensation under the Workers' Compensation Act (Dust Diseases) Act 1942. [118] The Second Reading Speech for the Industrial Arbitration (Workers Compensation) Amendment Bill 1987 was given on 14 May 1987 (which was also the second reading speech for the Workers Compensation Bill 1987). We have earlier set out part of that speech. We would add the following passages (at 12205 to 12208): ...It has developed because of the increasing diversion of resources, both human and financial, to the litigious nature of dispute settlement rather than to rehabilitation and meeting the ongoing needs of genuinely incapacitated workers......Just as importantly, the lump sum orientation of the present workers' compensation system acts as a positive disincentive to rehabilitation, because the overriding emphasis of the present system is to focus on the negative aspects of the victim's injuries and not on how that person can get back to a useful role in society. In stark contrast to the present position, the new system will emphasize prevention of accidents in the first instance, the effective rehabilitation of injured workers, and fair compensation to be provided to workers, regardless of fault......As mentioned, occupational health and safety, together with rehabilitation, constitutes a central feature of the reforms. It is now apparent that penalties provided under the Occupational Health and Safety Act and associated legislation should be made more realistic in providing a deterrent to corporations and individuals who fail to observe their responsibilities......One area of commonality amongst the parties involved in the workers' compensation field is rehabilitation. Each of the major parties, employers, unions and the professions, recognize that rehabilitation should play a central role in workers' compensation if costs are to be effectively reduced. It is widely recognized that rehabilitation has not been properly emphasised in the New South Wales workers' compensation system... [119] The first application under Part XV of the 1940 IA Act was heard by Fisher J (then President of the Industrial Commission) in Marro. In that case, the Commission heard an application under s 154C of the 1940 IA Act. An issue arose in that case as to whether the applicant's injury arose out of or in the course of employment. The injury had been sustained on a floating restaurant which was the venue for the work Christmas function. Fisher J was satisfied, on the facts of that case, that the injury sustained should be regarded as arising in the course of employment. It should be noted here that this is the only decided case within this jurisdiction on the question of liability to pay compensation and, further, that Fisher J, on the face of the record, was requested by the parties to determine that question as a preliminary matter without any analysis of or challenge in relation to the issues here raised for determination, namely, whether there was jurisdiction to do so. We also agree with the respondent's contention that the provisions of Pt X of the 1940 IA Act were in materially different terms to those found in Pt 7 of the IR Act 1996 or Pt 8 of the 1987 Act, given the difference between the definition of an "injured employee" in s 154 and later definitions of an "injured employee" and "injured worker" under the 1996 IR Act and the 1987 Act. 1991 IR Act [120] The provisions of the 1940 IA Act were, for all intents and purposes, duplicated in the 1991 IR Act. Section 235(1) was as follows: Definitions and application (1) For the purposes of this Part, an "injured employee" is an employee who (a) receives an injury, within the meaning of the Workers Compensation Act 1987; or (b) receives and injury (being a dust disease) for which the employee is entitled to receive compensation under the Workers' Compensation (Dust Diseases) Act 1942. [121] The Explanatory Note for the Industrial Relations Bill 1991 relevantly provides: Part 7 - Protection of Injured Employees Part 7 re-enacts provisions designed to protect the employment of employees injured on the job. An employee who is dismissed from employment on account of such an injury is entitled to be reinstated on demand, if the employee is fit to resume the position. A failure by the employer to accede to this demand may be remedied by an order for reinstatement, made by the Commission. To assist the Commission to make a finding as to capacity for work, the injured employee may be referred to a medical referee or medical panel. Furthermore to assist in the rehabilitation of the injured employee, it is an offence for an employer to dismiss the injured employee, on account of the injury, within 6 months of the employee's becoming unfit for employment. The Part contains other ancillary provisions and is expressed to be in addition to any rights the employee may have under another Act or under any award, agreement or contract of employment. 1996 IR Act [122] The present wording of s 240 as found in the 1987 Act had its origin, in our view, in the enactment of the 1996 IR Act. The definition of an injured employee was altered. Section 91 of the 1996 IR Act provided: Part 7 Protection of injured employees 91 Definitions (1) For the purposes of this Part, an injured employee is an employee who receives an injury for which the employee is entitled to receive compensation under the Workers Compensation Act 1987 or the Workers' Compensation (Dust Diseases) Act 1942. (2) For the purposes of this Part, a person is the employer of an injured employee only if the injury arose (either wholly or partly) out of or in the course of employment with that person. (3) In this Part, reinstatement includes re-employment. [123] The provisions relating to an offence and the application for reinstatement were relevantly unaltered. [124] In his Second Reading Speech given on 23 November 1995, the Honourable J W Shaw (Attorney General and Minister for Industrial Relations) said the following in the Legislative Council about these provisions: Part 7 - Protection of Injured Employees Chapter 2 part 7 carries forward the provisions of the 1991 Act which are designed to provide certain employment-security rights for persons who have suffered a work-related injury. The existing provisions have been the subject of some judicial criticism and the bill has been redrafted to state more clearly the powers of the commission in this area and to make some appropriate changes to assist injured workers. The bill now allows the commission the discretion to order back payments. This is an appropriate discretionary measure: dismissed injured workers, no less than unfair dismissal applicants, should not be disadvantaged financially and should be encouraged to return to work. There is no ability to order compensation in lieu of reinstatement: the policy objective is the reinstatement of injured workers. The bill adopts a more flexible approach to the kind of employment to which an employee can be reinstated. This will facilitate the laudable aim of the return to work of injured employees - but will be balanced against employer interests as it must be employment which is available and for which the employee is fit. It is not intended that orders would be made for employment that is merely of a token nature and does not involve useful work having regard to the employer's operations; or employment that is demeaning in nature, having regard to the nature of the worker's incapacity, education, skills and work experience. It is intended that the meaning of "available" reflect the approach taken by the Commission in Commonwealth Steel Company Limited v Ward, [1993] IRC 3144 (Unreported). Before leaving the topic of injured workers, I should mention that it is intended that the references to "dismissal" in this part of the bill dealing with the protection of injured workers be capable of applying to instances of "constructive dismissal". [125] We were referred to the Explanatory Note for the Industrial Relations Bill 1996 which provided, in relation to Pt 7: Part 7 Protection of injured employees. This part re-enacts provisions of the 1991 Act designed to protect the employment of employees injured on the job. The application of the provisions and the remedies available have been clarified and extended having regard to the provisions relating to unfair dismissal. 1998 Amendment [126] Section 91 of the 1996 IR Act was amended by the Workers Compensation Legislation Amendment Act 1998 so as to add reference to the 1998 Act in addition to the 1987 Act. This corresponded, of course, with the passing of the 1998 Act and amendments to the 1987 Act. 2006 Amendment [127] By the Industrial Relations Further Amendment Act 2006, Pt 7 of Ch 2 of the 1996 IR Act was repealed and Pt 8 of the 1987 Act enacted. The provisions of Pt 7 were carried over in substantially the same terms. There were some modifications. For example, the expression "injured employee" was replaced with "injured worker", and the words "this Act" inserted to replace the previous reference to various statutes.
The history outlined above supports the distinction in the statutory text between the provision of compensation, rehabilitation and reinstatement on the one hand, and the retention of the common law right to recovery of damages on the other. This is evidenced by the Second Reading Speech for the Industrial Arbitration (Workers Compensation) Amendment Bill 1987 which outlined the purpose of the legislative reforms (a larger extract is provided above): ...It has developed because of the increasing diversion of resources, both human and financial, to the litigious nature of dispute settlement rather than to rehabilitation and meeting the ongoing needs of genuinely incapacitated workers... Just as importantly, the lump sum orientation of the present workers' compensation system acts as a positive disincentive to rehabilitation, because the overriding emphasis of the present system is to focus on the negative aspects of the victim's injuries and not on how that person can get back to a useful role in society.
In his submissions, the appellant highlighted the change in the definition of 'injured employee' between the Industrial Relations Act 1991 and the IR Act to include a reference to the employee's entitlement to receive compensation. The appellant submitted that this change in definition disclosed an intention to directly preclude any entitlement to an order for reinstatement once an injured worker had recovered workplace injury damages under Pt 5 of the WC Act.
When examining historical amendments to legislation, a court must not simply presume that the legislature has changed its intention but must consider also whether the words in the later amendments have, in fact, been inserted to remove possible doubts: see Ostojic v Trazmet Pty Ltd [2005] NSWCA 145 at [10]; Allina Pty Ltd v FCT (1991) 99 ALR 295 at 303. This brings attention back to the Court of Appeal's decision in Speirs. In Speirs, the Court thoroughly examined the history of the definition and concluded "[t]here is no indication that the changes in the definition were intended to alter the scope or operation of the provisions" (at [31]). We accept the appellant's submission that the change in definition did not alter the scope or operation of the provisions, but rather clarified the intention behind and application of the Part.
The legislative history of Pt 5 is also of relevance. Part 5 of the WC Act, as enacted, abolished the availability of common law remedies, being damages, against an employer in respect of an injury for which compensation was payable under that Act. By the Workers Compensation (Benefits) Amendment Act, Pt 5 was amended so as to preserve common law and other remedies, including damages, except as otherwise provided by the WC Act (s 151). Section 151A of that Act was headed "Election - damages or 'Table of Maims' compensation". This section provided: (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: (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 accepting payment of that permanent loss compensation (in which case the person ceases to be entitled to recover damages in respect of the injury). (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.
Section 151B provided for the "Effect of recovery of damages from employer on payment of compensation", being: Effect of recovery of damages from employer on payment of compensation 151B. (1) If a person recovers damages in respect of an injury from the employer liable to pay compensation under this Act (a) the person then 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 compensation already paid in respect of the injury concerned is to be deducted from the damages (awarded as a lump sum) and is to be paid to the person who paid the compensation. (2) This section does not apply to a person who recovers damages for non-economic loss in respect of an injury if the person does not recover any damages for economic loss in respect of that injury because of the operation of section 151H (No damages for economic loss unless injury serious).
The Workers Compensation Legislation Further Amendment Act 2001 omitted s 151A and s 151B, as outlined above, and in their place inserted s 151A in its current form, also being the form when Pt 8 was inserted into the WC Act.
Again, an historical analysis of s 151A evidences an intention of the legislature that is in line with a literal reading of the text. That is, should a person decide to recover damages regarding their injury from their employer, they are necessarily prohibited from obtaining further compensation, rehabilitation and reinstatement. The Commissioner noted in his decision, a point that was adopted by the respondent in their submissions, that neither the ability to apply for reinstatement under s 241, nor access to the jurisdiction under s 242, are among the exclusions listed s 151A. However, the history of the legislation clearly demonstrates that the intention of the legislature has never been to allow a person to both recover damages and receive compensation under the WC Act. The right to common law damages was initially abolished under the WC Act. When this right was re-enlivened in the legislation, it was expressly limited and required the person to elect to claim compensation or damages. While the election provisions have been removed, the substance of the election provisions remains in the current wording of s 151A of the WC Act.
We do not consider that the legislature intended, as a consequence of the relocation of Pt 8 described above, for an injured worker to become entitled to both recover workplace injury damages under Pt 5 while retaining an entitlement to seek reinstatement to his or her pre-injury employment. Such an outcome is contrary to the historical distinction in the legislation between the availability of compensation or damages, including the requirement of an injured worker to elect whether to recover damages or compensation from their employer. Nor do we consider, as submitted by the respondent, that the historical circumstances of the transition reveals an intention to alter the "balance of the scheme". Rather, an examination of the history of the provisions supports the literal interpretation of the text.
Given our findings above, we do not find support for the appellant's submission that the failure to advert to Pt 8 in s 151A was a casus omissus. While s 151A lacks a reference to reinstatement under Pt 8 of the WC Act, words used by the legislature clearly demonstrate that Pt 8 was intended to apply only to those persons who were entitled to compensation under the WC Act, necessarily excluding from the application of that Part those persons who had received damages. Furthermore, Pt 8 does not interact with s 151A, nor other provisions of the WC Act, to produce an inconsistency.
We note that had the definition of 'injured worker' been ambiguous, we may have been justified to read a provision of the WC Act as if it contained additional words in order to give effect to the intent of the legislature. This would have first required satisfaction of the conditions prescribed by Lord Diplock in Wentworth Securities Ltd v Jones [1980] AC 74 at 105 (which, we note, were added to by Dawson J in his Honour's dissenting judgment in Mills v Meeking (1990) 169 CLR 214 at 235 and clarified by French CJ, Crennan and Bell JJ in Taylor v Owners - Strata Plan No 15564 [2014] HCA 9; (2014) 88 ALJR 473).
Had we found the existence of a casus omissus, the appellant proposed two alternative constructions to give effect to the legislatures intent, being: 1. to read in the words "and to reinstatement" into the definition of 'injured worker'; or 2. to amend the text of s 151A so as to expressly state that a person is excluded from the operation of Pt 8 after they have been awarded damages under Pt 5 of the WC Act.
While the Commission may have been justified to read the words proposed by the appellant into the definition of 'injured worker', we consider that to amend the text of s 151A in the manner proposed would be too far reaching and verging on 'judicial legislation', contrary to Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 88 ALJR 473 at [40].

Conformity with Common Law Principles

Statutory construction presumes that common law doctrines are not overridden by the legislature without a clearly expressed intention to do so: Potter v Minahan (1908) 7 CLR 277 and Bropho v State of Western Australia (1990) 171 CLR 1 at 18. The High Court in Balog v Independent Commission Against Corruption (1990) 169 CLR 625 also observed, at 477, that a construction of legislation in accordance with common law principles must be favoured over a construction that would run against such well-established principles, unless a clear intent by the legislature to override the common law is able to be ascertained.
The appellant correctly contended that three principles at common law are applicable to the process of construction here undertaken, being: 1. The 'once and for all' principle, being that "…for one cause of action you must recover all damages incident to it once and for all": Darley Main Colliery Co v Mitchell (1886) 11 App Cas 127 per Lord Halsbury at 132; 2. The principle that an award of damages, whether in tort or contract, is compensatory and that a person cannot recover more than he or she has lost: Haines v Bendall [1991] HCA 15; (1991) 172 CLR 60 at 63 per Mason CJ, Dawson, Toohey and Gaudron JJ; Manser v Spry [1994] HCA 50; (1994) 181 CLR 428 at [8]; and 3. The rule against 'double compensation': Boncristiano v Lohman [1998] 4 VR 82 at 89 per Winneke P.
The appellant submitted that to allow a person to recover damages and then seek reinstatement would be inconsistent with the above principles due to the very nature of damages being to compensate for any future loss due to the deprivation of earning capacity arising from the injury. To allow a person to seek reinstatement after they have recovered damages is highly likely to result in the person effectively being doubly remunerated.
However, the respondent proposed a different construction should be taken to Mr Rudd's application for reinstatement. It contended that, as he simply received a "lump sum settlement", it is impossible to ascertain what element of the settlement was paid with respect to future economic loss and, therefore, no incongruity arises. Further, it was submitted that, if reinstatement occurred, the payment of wages for future work that the appellant requires be performed could not constitute a financial burden.
We consider that this submission by the respondent is misplaced. This Commission is not required to determine whether the appellant would suffer a financial burden by reinstating Mr Rudd to perform any future work that is required to be completed. Rather, the Commission is required to determine if the appellant is required to reinstate Mr Rudd. It was accepted that Mr Rudd had received damages in fulfilment of, and as an alternative to, his right to compensation under the WC Act. To require Mr Rudd to be reinstated by the appellant would be to provide him with a form of additional compensation in relation to his injury. This would be contrary to the three principles outlined above.
We find that no aspect of the legislation evidences an expressed intention to override these common law principles. Rather, a literal approach to the provisions of the WC Act indicates an intention consistent with the decision in Manser v Spry that such a duplication of entitlements is to be avoided. The literal reading of the provisions is supported by their context and history, which evidence an intention to expressly prohibit a worker recovering damages and seeking further compensation. Effect should be given to that intention.
Specifically, the interpretation of 'injured worker' expounded above is consistent with the common law principles of finality associated with an action for damages, supporting the conclusion that the legislature intended the recovery of common law damages pursuant to Pt 5 of the WC Act to bring to an end an injured worker's entitlement to compensation under that Act.
The WC Act also provides that damages are recovered in full satisfaction of an employer's obligation under that Act regarding compensation for that worker's injury. For the WC Act to permit an injured employee to be reinstated and remunerated by the employer from whom they have already received damages would be contrary to these well-established common law principles.
We accept, therefore, the appellant's submission that, as a matter of logic, there would be an overlap between the recovery of damages at common law, particularly those for future economic loss, and an order for reinstatement. As observed by the Commissioner, it would be anomalous for the right to reinstatement to survive the recovery of common law damages (at [45]).

The Purpose of the Legislation

It is accepted, as a general principle, that when interpreting a provision of an Act, a construction that would promote the object or purpose underlying the Act is to be preferred to a construction that would not promote that object or purpose: Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138 per Gleeson CJ. However, his Honour noted, at [6], that "Ultimately, it is the text, construed according to such principles of interpretation as provide rational assistance in the circumstances of the particular case, that is controlling". This mirrors the recent caution given by the majority of the High Court in Certain Lloyds when examining purpose: [41] It is not legitimate to identify a legislative purpose not apparent from the text of the relevant provisions (or in this case even expressed in some extrinsic material), to examine extrinsic material and notice that there is nothing positively inconsistent with the identified purpose, and then to answer the question of construction by reference to the purpose that was initially assumed. That reasoning is not sound. It is reasoning of the kind of which Spigelman CJ rightly disapproved in the extra-curial writing set out earlier in these reasons. Statutory "purpose" and "intention" are to be identified according to the principles that were described earlier under the heading "Some basic principles".
It is clear from both the WC Act and the WIM Act that the overall purpose of the statutory scheme is to establish a workplace injury management and compensation system with an objective of assisting injured workers and promoting their return to work as soon as possible: s 3 WIM Act. This is primarily achieved through the provision of compensation and rehabilitation, as evidenced by the predominant body of the WC Act.
Part 8 is adjunct to the rehabilitation and return to work provisions under the workers compensation scheme. Specifically, Part 8 can be seen to give effect to the purpose of the WC Act by providing for an 'injured worker' to apply for reinstatement once they become fit for employment.
However, Pt 5 of the WC Act addresses a competing purpose, being to preserve the ability of an injured worker to receive damages, rather than compensation under the WC Act.
As noted by Gleeson CJ in Carr, at [5]: … That general rule of interpretation [promoting the purpose or object of the Act], however, may be of little assistance where a statutory provision strikes a balance between competing interests, and the problem of interpretation that there is uncertainty as to how far the provision goes in seeking to achieve the underlying purpose or object of the Act. Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose.
The situation contemplated by Gleeson CJ in the above extract appears to be evident in the present context. That is, the purpose of Pt 5 appears distinct from the purpose of Pt 8. Part 8 helps to fulfil what appears to be one of the dominant purposes of the WC Act, being to promote the return of injured workers to work as soon as possible. In contrast, Pt 5 appears to fulfil a subordinate purpose, being to preserve an injured worker's right to receiving common law damages.
The WC Act recognises the opposing nature of these purposes, with the function of the definition of 'injured worker' in Pt 8 being to remove persons who have received benefits under Pt 5 from the scope of Pt 8. This enables Pts 5 and 8 of the WC Act to be read harmoniously. A literal reading of the provisions fits hand in hand with its purpose.

Ground 3

Given the conclusions reached as to grounds one and two of the appeal, it is unnecessary to resolve the third ground of appeal regarding the Commissioner's purported lack of reasons. However, in passing, we wish to observe that we consider the appellant's argument in that respect to be weak: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 per Meagher JA at 442 to 444.
Reasons need not necessarily be lengthy or elaborate. In the Commissioner's reasons, he referred to the relevant evidence critical to the proper determination of the matter, including referring to the arguments of both parties in detail; set out his material findings as to the operation of the legislation, including the interaction between the legislation and the common law; and logically outlined the reasons for his conclusions. Furthermore, Newall C's reasons have clearly placed the parties in a position to understand why the decision was made sufficiently to allow them to exercise their right of appeal: Beale at 444.

Conclusion

Leave to appeal was granted during the course of the proceedings. The reasons for that grant of leave are contained earlier in this decision.
On the basis of the aforementioned reasons, the appeal should be allowed. The Commissioner's decision discloses an error of law regarding the proper construction of Pts 5 and 8 of the WC Act which has led to the Commission misconceiving its jurisdiction under the WC Act. The Commissioner's decision should be set aside. This conclusion must result in the Amended Notice of Motion filed on 9 July 2014 being granted and the primary proceedings dismissed.

orderS

The Full Bench makes the following Orders: 1. The grant of leave to appeal is confirmed; 2. The appeal is allowed; 3. The order of Newall C of 25 July 2014 in Matter No IRC 954 of 2013 is set aside; 4. In lieu thereof order that: 1. The appellant's Amended Notice of Motion filed on 9 July 2014 is granted; 2. The proceedings in Matter No IRC 954 of 2013 are dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 March 2015

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