Victorian WorkCover Authority & Anor v Balogh [2004] VSCA 200

STATUTES - Construction - Purposive construction - Expressio unius est exclusio alterius.

2. I agree with the disposition of this matter as proposed by Nettle, J.A. for the reasons advanced by him in his judgment.

7. This is an appeal pursuant to s.52 of the Accident Compensation Act 1985 from a judgment of the County Court given on 31 March 2003. The question of law is whether s.114B(2)(b), s.114(9) and s.114B of the Act applied in circumstances where weekly payments were not in fact being paid to the worker at the end of the "entitlement period".[1]

1. The respondent worker suffered depression and anxiety which was found to be contributed to by stress in her employment with the Shire and its predecessor organisations. She ceased work in 1997 and was initially paid sick and other leave entitlements. She claimed compensation on 21 September 1998 and her claim was accepted and weekly payments of compensation were made from that date.

2. On 3 November 1999 the agent of the Victorian WorkCover Authority ("VWA") gave notices pursuant to s.114 of the Act purporting to terminate payments with effect from 6 December 1999 and payments did in fact cease on that day.

3. On 21 January 2000 the worker instituted proceedings in the Magistrates' Court to challenge the decision to terminate weekly payments. The proceedings were later transferred to the County Court. The worker also sought a determination that her injury constituted a serious injury under

s.135A(19). The VWA rejected the application and the worker instituted proceedings in the County Court in which she sought leave to bring proceedings for damages in accordance with s.135A. Both proceedings were heard together.

(a) The grounds for termination of weekly payments relied on in the notices of 3 November 1999 were not substantiated and that the decision to terminate weekly payments should be set aside.

(b) Pursuant to s.114E, that the amount of outstanding weekly payments at the rate fixed by the Act and interest at the prescribed rate on that amount be paid to the "Respondent for the period from 6 December 1999 to the date of the decision".

(c) That weekly payments continue in accordance with law.

The judge refused the worker leave to bring proceedings for damages on the grounds that the injury was not a serious injury within the meaning of s.135A(19)(c).

"59. Section 93CD enables a worker who has a current work capacity and is, or has been, entitled to weekly payments under s.93B or (significantly) s.93CC, to apply to the Authority for a determination that the entitlement to weekly payments does not cease after the expiry of [the] second entitlement period. The Authority may determine that the worker's entitlement does not cease after the expiry of [the] second entitlement period where the worker has returned to work and has a partial incapacity. The reference in s.93CD to the entitlement to payments under s93CC is significant because it discloses an expectation that payments, or entitlement to payments, may continue after the expiry of the second entitlement period for a worker with a current work capacity. 60. Section 114 deals with the termination of weekly payments. It provides, in subsection (2)(a) and (b) that the Authority may terminate weekly payments on the ground that the worker is not entitled to compensation under Division 1 or 2 or is no longer entitled to weekly payments. Pursuant to subsection (4) a termination of weekly payments on the grounds specified in subsection (2)(a) or (b) has effect only if written notice in accordance with sub-section (10) is given. As section 93CC falls within Division 2 these provisions suggest that for cessation of weekly payments after the second entitlement period to have effect it is necessary to give the worker notice in accordance with subsection (10). This construction is confirmed by subsection (9) which states: A termination of weekly payments solely on the ground of the expiry of the second entitlement period within the meaning of section 93CB(1) has effect- (a) if written notice in accordance with subsection (10) is given; and (b) if section 114B has been complied with. Section 114B adds further confirmation to the construction that notice is required before weekly payments can be terminated as it states that weekly payments must not be terminated under section 114(9) unless the Authority has made a determination of the worker's entitlement to weekly payments after the expiration of the second entitlement period, and has given at least 28 days notice under s114 of the decision following that determination. 61. As there has been no determination by the Authority of the [respondent worker's] entitlement after the expiration of the second entitlement period as required by s114B, and more importantly, as written notice has not been given to the [respondent worker] in accordance with subsection (10), subsection (4) requires that any termination of weekly payments to which the [the respondent worker] was entitled under s 93CC would be of not effect. 62. Therefore, pursuant to the statutory scheme, the consequence of the finding that the grounds given for the termination of weekly payments to the plaintiff had not been substantiated is that the decision to terminate the weekly payments should be set aside and an order made that the amount of outstanding weekly payments and interest at the prescribed rate on that amount are payable to the plaintiff from the day on which the decision took effect until the day on which the decision is set aside (see section 114E)."

29. The issue in this appeal is whether the judge was correct in holding that weekly payments were payable under s.93B after "the expiry of the second entitlement period"[2] notwithstanding that the respondent failed to establish that she had sustained a serious injury.

32. The appellant accepts that the purported stoppage was not authorised, and hence that the worker was entitled to receive payments up until the end of the second entitlement period. It contends, however, that the judge should not have ordered payments in respect of the period after the expiry of the second entitlement period.

35. The appellant argues that sub-ss.114(2)(b) and (9) and s.114B should be construed purposively: as not applying to a worker unless payments are actually being made to the worker at the end of the second entitlement period. The appellant submits that despite the apparent generality of the provisions, their purpose was to allow a worker time to prepare alternative finances, and that there is no need for time to do that unless the worker is in receipt of payments when the notice is given, and that the provisions should be construed accordingly. It is also submitted that a worker's entitlement to receive weekly payments depends upon the worker having a continuing incapacity for work and upon the provision of medical certificates. So, the argument goes, if payments are stopped, even if the stoppage is later determined to have been unauthorised, there is no automatic or immediate entitlement to payments in respect of the period after the unauthorised stoppage. As the appellant would have it, the learned judge failed to notice the distinction between the entitlement to weekly payments and the actuality of the making of payments and thereby fell into error.

39. I take the principles of purposive statutory construction to be as stated by McHugh, Gummo, Kirby and Hayne. JJ. in _Project Blue Sky v Australian Broadcasting A_uthority,[3] as follows:

"69. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of a ll the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed. 70. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. 71. Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent"."

43. In my opinion the application of those principles to sub-ss.114(2)(b), (9), and of s.114B makes plain that those provisions are not confined to situations in which a worker is actually in receipt of payments at the end of the second entitlement period.

Section 114

47. At relevant times s.114 provided that:

"114. Termination or alteration of weekly payments (1) The Authority or self-insurer may in accordance with this Act terminate a worker's entitlement to weekly payments or alter the basis on which the amount of the weekly payment is to be calculated whether or not the worker is currently receiving weekly payments. (2) In addition to other grounds under this Act for termination or alteration of weekly payments, the Authority or a self-insurer-- (a) may increase or reduce weekly payments on the ground that there is not, or is no longer, an entitlement to weekly payments of the existing amount; and (b) may terminate weekly payments on the ground that-- (i) the worker is not entitled to compensation under Division 1 or 2; or (ii) the worker is not, or is no longer entitled to weekly payments; or (c) may terminate or alter weekly payments on the ground that-- (i) the worker has returned to any work whether as a self employed person or in employment; or (ii) in the case of a worker who has notional earnings, the amount of the worker's notional earnings alters. (3) The Authority or a self-insurer may terminate weekly payments if it considers that payments were obtained fraudulently. (4) A termination or alteration of weekly payments on the grounds specified in sub-section (2)(a) or (2)(b) has effect-- (a) only if written notice in accordance with sub-section (10) is given; and (b) after the expiry of the required notice period. (5) A termination or alteration of weekly payments on the grounds specified in sub-section (2)(c) or section 93E, 93F, 96, 97(2) or 97(7) has effect-- (a) without the giving of notice; and (b) as from the day on which the circumstances establishing the relevant ground first arise. (6) A termination of weekly payments on the ground specified in sub-section (3) has effect-- (a) if written notice in accordance with sub-section (10) is given; and (b) as from the day (whether before, on or after the giving of the notice) on which the Authority or self-insurer makes the decision. (7) A termination of weekly payments on the ground specified in section 93CA(4), 93CB(4) or 93CC(5) has effect-- (a) if written notice in accordance with sub-section (10) is given; and (b) as from the day (not being a day before the giving of the notice) specified in the notice. (8) A reduction of weekly payments solely on the ground of the expiry of the first entitlement period within the meaning of section 93CA(1) has effect-- (a) if written notice in accordance with sub-section (10) is given; and (b) if section 114A has been complied with. (9) A termination of weekly payments solely on the ground of the expiry of the second entitlement period within the meaning of section 93CB(1) has effect-- (a) if written notice in accordance with sub-section (10) is given; and (b) if section 114B has been complied with. (10) A notice must-- (a) be given to the worker; and (b) state the reasons for giving the notice; and (c) state-- (i) in the case of termination, when weekly payments will be stopped; and (ii) in the case of alteration, the new level of weekly payments and when payments at the new level will commence. (11) If a worker-- (a) has received weekly payments of compensation for a continuous period of at least 12 weeks; and (b) has provided the worker's employer, or where applicable, the Authority or self-insurer with a certificate of capacity in accordance with section 111-- the Authority or self-insurer must not terminate or reduce weekly payments during the period of incapacity so specified without giving the worker the required period of notice of intention to do so. (12) If weekly payments are terminated or reduced in contravention of sub-section (11), the worker may recover from the Authority or self-insurer an amount of compensation that-- (a) if no period of notice has been given--is equal to the amount of compensation or additional compensation, that would have been payable during the required period of notice if weekly payments had not been terminated or reduced; or (b) if less than the required period of notice has been given--is equal to the amount of compensation that would have been payable during the balance of the required period of notice if weekly payments had not been terminated or reduced. (13) The required period of notice is-- (a) if the worker has been receiving weekly payments of compensation for a continuous period of at least 12 weeks but less than 1 year--14 days; or (b) if the worker has been receiving weekly payments of compensation for a continuous period of 1 year or more--28 days."

51. As it appears to me, "the context, general purpose and policy" of s.114 was to provide comprehensively for the procedures for termination of payments for any of the several causes of termination for which the Act provides:

* Sub-s.114(1) appears to be of general application and the plain and ordinary meaning of its terms is that payments may be terminated in accordance with the Act, for any cause for which the Act provides, "whether or not the worker is currently receiving weekly payments".

* Sub-s.114(2) adds a number of bases for termination of payments to the those specified elsewhere in the Act.

* Sub-s.114(4) conditions the power to terminate pursuant to s.114(2)(a) or (b) upon giving notice in accordance with sub-s.(10) and provides that the termination is not to take effect until the expiration of the notice period.

* Sub-s.114(5) conditions the power to terminate pursuant to s.114(2)(c) [or ss.93E, 93F, 96, 97(2) or 97(7)] upon giving notice, and provides that the termination may take effect as from the day on which the circumstances establishing the relevant ground first arises.

* Sub-s.114(6) dispenses with the need for any period of notice in the case a termination pursuant to s.114(3) (ie. for fraud) by providing that the termination may take effect from the day on which the decision to terminate is made.

* Sub-s.114(7) conditions the power to terminate pursuant to ss.93CA(4), 93CB(4) or 93CC(5) (which is to say for failure to make reasonable efforts to return to work, etc) upon giving notice in accordance with sub-s.(10) and provides that the termination is not to take effect until the expiration of the notice period.

* Sub-s.114(8) deals with the termination of weekly payments on the sole ground of the expiry of the first entitlement period (which is defined in s.93CA(1) as 13 weeks, whether consecutive or not, in which a weekly payment is paid or is payable to the worker). The section conditions termination upon the giving of notice in accordance with sub-s.114(10) and compliance with s.114A (which is to say the Authority making a determination of the worker's entitlement under s.93CB to receive payments after the first entitlement period and until the expiry of the second entitlement period).

* Sub-s.114(9) deals with termination on the sole ground of the expiration of the second entitlement period (which is defined in s.93CB (1) as 104 weeks, whether consecutive or not, including the first entitlement period, in which a weekly payment is paid or is payable to the worker). The section conditions termination upon the giving of notice in accordance with sub-s.114(10) and compliance with s.114B (which is to say the Authority making a determination of the worker's entitlement under s.93CD to continue to receive weekly payments after the expiry of the second entitlement period).

* Sub-s.114(11) prohibits termination or reduction of benefits in specified circumstances during a period of incapacity for which a certificate has been provided.

* Sub-s.114(12) provides that if payments are terminated contrary to sub-s.(11) the worker can recover them.

* Sub-s.114(13) provides for the required period of notice for the purposes of s.114(11).

65. Like the learned County Court judge, I am also of opinion that s.114(1) applies to a termination pursuant to sub-ss.114(2) and (9) in the same way that it may apply to any of the other powers of termination mentioned or referred to in the remainder of s.114. That is the plain and ordinary meaning of s.114(1), and such implication as may be derived from its position in s.114 is that it is intended to apply generally to all powers of termination provided for or referred to in s.114. Consequently, I agree with the learned judge that the power of termination for which sub-ss.114(2) and (9) provide may be invoked whether or not a worker is currently receiving payments

68. I recognise that s.93CB provides for the entitlement to benefits to cease upon the expiry of the second entitlement period, and therefore that the construction which I put upon s.114(1) puts s.93CB "in conflict" with s.114(9). But in my opinion "harmonious goals and the reconciliation of the conflict" are to be achieved by recognising that s.114(9) is the leading provision and therefore, to the extent of the conflict, that s.93CB must give way to s.114(9). In my opinion that approach "best gives effect to the purpose and language" of both provisions "while maintaining the unity of the statutory scheme". It is also to be preferred because it gives effect to both provisions and avoids the possibility of either of them being regarded as "void or insignificant".

71. I also recognise a degree of inconsistency in the drafting of s.114. For example, s.114(1) refers to the Authority terminating a worker's entitlement to weekly payments whereas the other sub-sections refer to the termination of weekly payments. But upon analysis it may be seen that the section employs the two conceptions interchangeably.

74. In one sense the reference in s.114(1) to terminating the entitlement to payments must be read as a reference to terminating payments. A worker's entitlement to payment starts and terminates when the Act says that it does; not when and if the Authority asserts that it does. Relevantly, the Authority's function is to give effect to an entitlement to payments established by the Act by making payments in accordance with that entitlement and to give effect to the termination of an entitlement caused by the Act, by ceasing payments consequent upon that termination of the entitlement.

77. Equally, however, while sub-s.114(1) may for that reason be taken as referring to the termination of weekly payments, and the other sub-sections do in fact refer to the termination of weekly payments, each of them is also concerned with the termination of the entitlement to payments. As has been seen, sub-s.114(12) provides that if the procedure laid down by s.114 for the termination of payments is not complied with, the worker may sue to recover the payments that would have been payable if the procedures had been complied with. That means that there is a continuing entitlement to payments until notice has been given. While the Act has elsewhere dictated that the entitlement to payments has ceased, s.114 provides in effect that it will continue until the notice procedures have been complied with.

80. It follows in my opinion that a notice under s.114 is capable of being as much a notice to terminate the entitlement to payments as it is a notice to terminate payments themselves. Where a notice of termination is given when a worker is not in receipt of payments, the termination can only be a notice of termination of the entitlement to payments. Where a notice of termination is given when a worker is in receipt of payments, the termination is of both the entitlement to payments and of the payments themselves.

Section 114B

84. The conclusion that the entitlement to payments continues until notice is given in accordance with s.114 is confirmed by s.114B. At relevant times it provided that :

"114B. Termination of weekly payments after expiry of entitlement period (1) Weekly payments must not be terminated under section 114(9)-- (a) unless the Authority or self-insurer has made a determination of the worker's entitlement to weekly payments after the expiry of the second entitlement period within the meaning of section 93CB(1); and (b) until the Authority or self-insurer has given at least 28 days notice under section 114 of the decision following that determination. (2) The notice is not invalid only because the date specified in the notice as the date on which the termination is to take effect is not a date immediately after the expiry of the second entitlement period within the meaning of section 93CB(1) but has effect on the date immediately after the completion of the second entitlement period within the meaning of section 93CB(1) or, if the date specified in the notice is a later date, the later date. (3) Notwithstanding anything to the contrary in section 93CC(1), until notice is given to a worker and the date specified in the notice has expired, the worker is deemed to be entitled to weekly payments under section 93CB in respect of any period after the expiry of the second entitlement period within the meaning of section 93CB(1) provided that the worker is but for the expiry of the entitlement period within the meaning of section 93B(3A) otherwise entitled to weekly payments. (4) Sub-sections (1)(b), (2) and (3) do not apply if the claim for weekly payments is made within the period of 56 days before the expiry of the second entitlement period within the meaning of section 93CB(1). (5) If sub-section (4) applies and weekly payments are commenced, the entitlement to weekly payments in respect of any period after the expiry of the second entitlement period within the meaning of section 93CB(1) must be determined in accordance with section 93CC(1).

88. As it appears to me, "the context, general purpose and policy" of this section was to provide comprehensively for the circumstances in which payments may be terminated on the sole ground of the expiry of the second entitlement period, and to prohibit termination of payments or the entitlement to receive payments solely on that ground otherwise than in accordance with its provisions.[4] It provides explicitly that, in those circumstances, the worker's entitlement to payments continues until a determination has been made under s.114B(1) and notice of the determination has been given:

* Sub-s.114B(1) provides in effect that payments must not be terminated on the sole ground of the expiry of the second entitlement period unless the Authority has first made a determination under s.93CB of the worker's entitlement to payments after the expiry of the second entitlement period. Perforce of sub-ss.114(1) and (9) it applies whether or not the worker is currently receiving weekly payments.

* Sub-s.114B(3) augments the operation of s.114B(1), by providing in effect that although s.93B(3) states that a worker's entitlement to payments terminates automatically upon the expiration of the second entitlement period, the worker is deemed to continue to be entitled to receive payments until the Authority has made a determination under s.114B(1) of the worker's entitlement to weekly payments after the expiry of the second entitlement period and given 28 days notice of the determination. Thus the prohibition on the termination of payments is matched by a corresponding deemed entitlement to continue to receive payments.

* Sub-s.114B(4) provides for two situations in which sub-ss.114B(1)(b), (2) and (3) do not apply, namely: in circumstances where payments have been suspended under s.112 (which is to say for refusing to participate in or obstructing a medical examination); and where application for payments is made within 56 days before the expiry of the second entitlement period.

* Sub-s.114B(5) makes plain that where sub-s.114B(4) applies (and hence it is not necessary to give notice in accordance with sub-s.114B(1)) the entitlement to payments comes to an end in accordance with s.93B(3) upon the expiration of the second entitlement period.

95. Like the learned County Court judge, it appears to me that that sub-s.114B applies in this case. The fact that sub-s.114B(4) expressly provides for the situations in which sub-ss.(1)(b), (2) and (3) do not apply, and does not refer to the possibility of payments having been terminated unlawfully as in this case, indeed implies that sub-ss.(1)(b), (2) and (3) are intended to apply. The maxim expressio unius est exclusio alterius is not always a safe guide to the construction of statutory provisions,[5] but this is one case where it appears clearly to apply. To adopt and adapt the words of McHugh, J., spoken in another context in Ousley v The Queen[6], given the history of this legislation it seems safe to proceed on the assumption that when the legislature specifies what must be done before payments may be terminated and the entitlement to payments ends, it intends its statement to be exhaustive.

The receipt of payments and entitlement to payments

99. I reject the suggestion that the learned judge erred in failing to notice the distinction between the fact of a worker receiving payments and the worker's entitlement to receive payments. His Honour did not specifically mention the distinction. But there was no reason for him to do so. The only argument with which his Honour was required to deal was that the requirement to give notice of termination of payments was limited to circumstances in which a worker was actually in receipt of payments. The deemed continuation of entitlement for which sub-s.114B(3) provides accords exactly with his Honour's analysis

102. The provisions of s.114B(3) also render untenable the contention that a worker's entitlement to continue to receive weekly payments after the expiration of the second entitlement period necessarily depends upon the worker demonstrating a continuing incapacity for work and upon providing the Authority with medical certificates. Where the only ground of termination relied upon is the expiration of the second entitlement period, s.114B(1) prohibits the Authority from terminating payments until the Authority has made a determination under s.93CD(1) of the worker's entitlement to weekly payments after the expiry of the second entitlement period, and given notice of its determination in accordance with ss.114B(1)(b), and s.114B(3) deems the worker to be entitled to continue to weekly payments until notice has been given and the time specified in the notice has expired.

105. It will be different where there are other grounds for termination as well as or instead of the expiry of the second entitlement period. In that event termination will be governed by s.114 in the manner to which I have already referred. But that is not this case.

109. It was submitted for the appellant that to construe ss.114 and 114B in the way I have construed them would be to place the Authority in an impossible position in respect of workers not in receipt of payments at the expiry of the second entitlement period. The argument was that where there has been a purported but ineffective termination of payments under s.114, as in this case, it may not be until years after the expiration of the second entitlement period that it is established that the purported termination was ineffectual. At that point, it was said, the Authority could be faced with a bill for weekly payments extending all the way up until it carries out a determination and gives notice of determination in accordance with s.114B(1). Such problems it was submitted could and should be avoided by construing ss.114 and 114B as limited to workers who are in receipt of payments as at the expiry of the second entitlement period.

112. I reject the argument. For one thing I take leave to doubt that problems of that kind are likely to occur very often. It may be assumed that the Authority will be assiduous to bring on for hearing any dispute about one of its determinations as quickly as possible. Additionally, if there were any real doubts about the efficacy of a s.114 determination, and the dispute remained undecided at the time of the expiry of the second entitlement period, there would be nothing to prevent the Authority carrying out the assessment for which s.114B(1) provides and giving notice of its determination without prejudice to the earlier s.114 notice. But in any event, I do not see a way consistent with the clear words of the provisions and the principles of purposive construction to which I have referred in which the problem can be avoided. It is not possible to construe the provisions in the way for which the appellant contends without reading in words which are not there, or without ignoring the apparent purpose of the provisions. This is not a case in which it is clear that Parliament has missed the target at which it was aiming or failed in an attempt to hit a target at which it was aiming[7].

116. Finally, it was submitted that the learned judge had erred by ordering not only the payment of weekly payments up to the date of his Honour's order, as is provided for by s.114E, but also that the Authority continue thereafter to make

120. I agree that the order to continue payments after the date of the order did go beyond the provisions of the Act and it appears also to have gone beyond the scope of the relief sought in the respondent's statement of claim. Furthermore, while it did no more than direct the Authority to do what the Authority was in any event bound by law to do, general orders of that kind should not be made. As a rule a defendant should not be enjoined in general terms to comply with law, lest through accident or oversight the defendant may thereafter breach the order.[8] In my opinion the order should be varied to delete that requirement.

124. In the result, I would allow the appeal and set aside that part of his Honour's orders which directs the Authority to continue to make payments after the date of the order. Otherwise I would dismiss the appeal.

[1] At relevant times the "entitlement period" was defined in s. 93B (3A) of the Act as:

"an aggregate period of 104 weeks (whether consecutive or not) in respect of which a weekly payment has been paid or is payable to the worker".

[3] [1998] HCA 28; (1998) 194 C.L.R. 355 at 381 [69] - [71], citations omitted.

[4] cf. Ousley v. The Queen (1997) 192 C.L.R. 69 at 83, per Toohey, J. and at 111, per McHugh, J.

[5] Pearce & Geddes, Statutory Interpretation in Australia, 5th Ed at [4.28]; Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 C.L.R. 564 at 575.

[6] (1997) 192 C.L.R. at 111; cf. O'Sullivan v. Farrer [1989] HCA 61; (1989) 168 C.L.R. 210 at 215.

[7] cf. Inland Revenue Commissioners v Ayrshire Employers Mutual Insurance Association [1946] 1 All. E.R. 637 at 641; Kingston v. Keprose Pty. Ltd. (1987) 11 N.S.W.L.R. 404 at 424; Pearce & Geddes, Statutory Construction in Australia 5th Ed at [2.27].

[8] MacLean v. Shell Chemical (Australia) Pty. Ltd. (1984) 2 F.C.R. 593 at 599; Commodore Business Machines Pty. Ltd. v. Trade Practices Commission (1990) A.T.P.R. 41-019 at 53,180-1; ICI Australia Operations Pty. Ltd. v. Trade Practices Commission [1992] FCA 474; (1992) 38 F.C.R. 248 at 260.