Associated Steamships Pty Ltd v Hore, Norman [1995] FCA 798

CATCHWORDS

ADMINISTRATIVE LAW - appeal from decision of Administrative Appeals Tribunal - entitlement to continuing compensation under Seaman's Compensation Legislation

STATUTORY INTERPRETATION - whether monetary limit imposed by Seamen's Compensation Act 1911 (Cth) is preserved by Seafarers Rehabilitation & Compensation (Transitional Provisions and Consequential Amendments) Act 1992 (Cth) - construction of ss 4, 5, 6, 7 & 12 of Seafarers Rehabilitation & Compensation (Transitional Provisions & Consequential Amendments) Act 1992 (Cth) - legislative intention - principles discussed.

Seamen's Compensation Act 1911 (Cth) s 5D

Seafarers Rehabilitation and Compensation (Transitional

Provisions and Consequential Amendments) Act 1992 (Cth)

ss 4, 5, 6, 7, 8, 12, 13 and 14.

Seafarers Rehabilitation and Compensation Act 1992 (Cth)

Brennan v R (1936) 55 CLR 253

Bank of England v Vagliano Bros [1891] AC 107

Mathieson v Burton (1970) 124 CLR 1

Pearce & Geddes, Statutory Interpretation in Australia, Third Edn at 160-3

On Appeal from the Administrative Appeals Tribunal

ASSOCIATED STEAMSHIPS PTY LTD (Appellant) and

NORMAN HORE (Respondent)

No G 326 of 1995

Beaumont, Einfeld and Tamberlin JJ

Sydney

2 November 1995

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY) No. G326 of 1995

GENERAL DIVISION )

ON APPEAL FROM

THE ADMINISTRATIVE APPEALS TRIBUNAL No N94/73

BETWEEN: ASSOCIATED STEAMSHIPS

PTY LTD

Appellant

AND: NORMAN HORE

Respondent

CORAM: BEAUMONT, EINFELD and TAMBERLIN JJ

PLACE: SYDNEY

DATED: 2 NOVEMBER 1995

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1 The appeal be dismissed.

2. The appellant pay the respondent's costs of the appeal.

NOTE: Settlement and entry of orders is dealt with in accordance with Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY) No G326 of 1995

GENERAL DIVISION )

ON APPEAL FROM

THE ADMINISTRATIVE APPEALS TRIBUNAL No N94/73

BETWEEN: ASSOCIATED STEAMSHIPS

PTY LTD

Appellant

AND: NORMAN HORE

Respondent

CORAM: BEAUMONT, EINFELD AND TAMBERLIN JJ

PLACE: SYDNEY

DATED: 2 NOVEMBER 1995

REASONS FOR JUDGMENT

THE COURT:

Introduction

This is an appeal from a decision delivered by the Administrative Appeals Tribunal ("AAT") constituted by Mathews J on 28 April 1995. That decision set aside a decision by Union Shipping Company Australia ("Union Shipping", now known as Associated Steamships Pty Ltd) whereby payments of compensation to Norman Hore ("Mr Hore") under the Seamen's Compensation legislation were discontinued as from 17 April 1994, because by that date he had received fortnightly compensation up to the maximum amount alleged to be payable to him, namely $68,100.

Issues

The questions of law raised on appeal, as set out in the Notice of Appeal, are:

"(a)Whether the monetary limit imposed by s 5D of the Seamen's Compensation Act 1911, is preserved by the Seafarers Rehabilitation and Compensation (Transitional Provisions and Consequential Amendments) Act 1992;

(b) The proper construction of the provisions of the Seafarers Rehabilitation and Compensation (Transitional Provisions and Consequential Amendments) Act 1992;

(c) Whether ss 4 to 7 and 12, in particular, of the Seafarers Rehabilitation and Compensation (Transitional Provisions and Consequential Amendments) Act, 1992 operate so as to preserve the application of the monetary limit imposed by s 5D of the Seamen's Compensation Act 1911, to the Respondent's entitlement to compensation under the Seamen's Compensation legislation."

The short question for this Court is whether the monetary limit imposed under s 5D of the Seamen's Compensation Act 1911 as amended, ("the 1911 Act"), is preserved by the Seafarers Rehabilitation and Compensation (Transitional Provisions and Consequential Amendments) Act 1992 ("the Transitional Act") or whether, as Mr Hore contends, the monetary limit no longer applies. The new Act which covers seafarers' compensation is the Seafarers Rehabilitation and Compensation Act 1992 ("the Principal Act"). Both the Transitional Act and the Principal Act commenced operation on 24 June 1993.

Statutory Provisions

Recorded below are the relevant statutory provisions.

Section 5D of the 1911 Act provides:

"5D (1) Notwithstanding anything contained in this Act, the amount of compensation payable in respect of an injury or injuries caused by any one accident shall not, except as provided by this section, exceed Twelve thousand dollars.

"(2) Where an injury results in the death or the total and permanent incapacity of the seaman for work, sub-section (1.) of this section shall not apply to limit the total amount of compensation payable under this Act."

The relevant provisions of the Transitional Act are:

"Purpose of this Part

4. This Part deals with injuries etc. that happened before the commencing day. It converts rights under the repealed Act into corresponding rights under the Principal Act, subject to the limitations imposed by the repealed Act.

Application

5. This Part has effect despite anything contained in the Principal Act.

Application of Principal Act to pre-existing injuries etc.

6. Subject to this Part, the Principal Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.

Entitlement to compensation

7.(1) A person is not entitled to compensation under the Principal Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage under the repealed Act.

(2) A person is not entitled to compensation under section 39 or 40 of the Principal Act in respect of a permanent impairment, or under section 29 of the Principal Act in respect of the death of an employee, being an impairment or death that occurred before the commencing day, if the person received compensation of a lump sum in respect of that impairment or death under the repealed Act.

(3) The amount of compensation (if any) that a person is entitled to receive under section 39 or 40 of the Principal Act in respect of a permanent impairment, or under section 29 of the Principal Act in respect of the death of an employee, being an impairment or death that occurred before the commencing day, is the same as the amount of compensation that would have been payable to that person under the repealed Act, if the Principal Act had not been enacted.

(4) A person is not entitled to compensation under section 43 of the Principal Act in respect of any period that occurred before the commencing day.

(5) A person is not entitled to compensation under subsection 29(5) of the Principal Act in respect of the death of an employee, or under section 31, 33, 34, 35, 36, 37 or 45 of the Principal Act in respect of an incapacity, if the compensation relates to a period occurring before the commencing day and:

(a) the person received weekly payments of compensation in respect of that death or incapacity in relation to that period under the repealed Act; or

(b) the person was not entitled to receive weekly payments of compensation in respect of that death or incapacity in relation to that period under the repealed Act.

(6) The rate of compensation (if any) that a person is entitled to receive under subsection 29(5) of the Principal Act in respect of the death of an employee, or under section 31, 33, 34, 35, 36, 37 or 45 of the Principal Act in respect of an incapacity, if the compensation relates to a period occurring before the commencing day, is the same as the rate of compensation that would have been payable to that person in relation to that period under the repealed Act if the Principal Act had not been enacted.

(7) A person is not entitled to compensation under subsection 28(1) or (6) or section 30 of the Principal Act in respect of any cost or expenditure, if the liability to pay the cost arose before the commencing day, or the expenditure was incurred before that day, and:

(a) an amount was paid in respect of that cost or expenditure under the repealed Act; or

(b) an amount was not payable in respect of that cost or expenditure under the repealed Act.

(8) The amount of the compensation (if any) that is, because of this section, payable under subsection 28(1) or (6) or section 30 of the Principal Act in respect of any cost or expenditure, where the liability to pay the cost arose before the commencing day, or the expenditure was incurred before that day, is the same as the amount that would have been payable in respect of that cost or expenditure under the repealed Act if the Principal Act had not been enacted.

(9) If proceedings for the recovery of compensation under the repealed Act in respect of an injury were not maintainable by a person because of section 6 of the repealed Act, that person is not entitled to compensation under the Principal Act in respect of that injury."

Her Honour, Mathews J, summarised sections 8 to 14 of the Transitional Act as follows:

".. . section 8 provides that a payment made by an employer before the commencing date in respect of a liability under the 1911 Act is taken to have been made in respect of the corresponding liability under the Principal Act. Section 9 contains machinery provisions relating to the service of notices, the lodgement of claims for compensation, the holding of medical examinations and the receipt of awards. Section 10 preserves settlements and determinations made pursuant to the 1911 Act. Section 11 entitles an employer to reconsider a decision made under the 1911 Act which was still effective on the commencing date.... Section 13 entitles an employee to bring an action for damages against an employer within six months after the commencing date in respect of injuries sustained before the commencing date, notwithstanding section 54 of the Principal Act which removes a right to claim damages. Section 14 provides that money held before the commencing date for the benefit of persons are to be held for their benefit under the Principal Act."

Section 12 of the Transitional Act provides:

"Liability under the Repealed Act.

12. A liability of an employer to pay compensation or make any other payment under any provision of the repealed Act, to the extent that it had not been discharged before the commencing day, is taken to have been incurred by the employer on that day under the corresponding provision of the Principal Act."

Section 16 of the Transitional Act repeals the 1911 Act in its entirety.

Background

In short, the facts are that on 3 July 1990 Mr Hore, who was employed by Union Shipping on board the motor vessel "Seaway Hobart", sustained multiple injuries to his back, neck, left knee, left hip and ribs when the ship was struck by a large wave. Mr Hore ceased work on that date and subsequently made a claim for compensation for partial incapacity pursuant to the 1911 Act. Union Shipping accepted Mr Hore's claim and made weekly payments to him until 17 April 1994 when it then declined further liability on the basis that Mr Hore had received weekly payments totalling $68,100 which was the monetary limit imposed in cases of partial incapacity by s 5D of the 1911 Act. On 24 June 1993 the 1911 Act was repealed by the Transitional Act and replaced by the Principal Act.

The Principal Act was designed to bring compensation for seafarers in line with workers compensation legislation applicable to Commonwealth employees generally. It emphasised and encouraged rehabilitation and the return of workers to their employment. The Principal Act distinguishes between "incapacity for work" and "permanent impairment". Under s 31 of the Principal Act, compensation for incapacity to work is paid on a weekly basis at a rate which is calculated according to a formula set out in that section. Importantly, there is no monetary limitation imposed on the amount of compensation payable under the Principal Act in respect of an employee's incapacity for work.

Reasoning Below

Mathews J considered that subsection 7(1) of the Transitional Act only provided that a person who had a claim for compensation in relation to an injury suffered before the commencing date was entitled to receive compensation under the Principal Act. In other words, she took the view that it related to entitlement to compensation rather than the amount of compensation to be paid.

Under the 1911 Act, the monetary limitation imposed by s 5D did not apply where an injury resulted in death or total and permanent incapacity. Subsection 7(3) of the Transitional Act deals with the amount of compensation in cases of death and permanent impairment and expressly provides that the amount of compensation shall be the same as that which would have been payable under the 1911 Act as amended. Because there was no similar provision in relation to incapacity for work, when it would have been easy for such provision to have been made, it was appropriate to infer that no such limitation was intended. Accordingly, Mathews J concluded that there was nothing in s 7 of the Transitional Act which extended the monetary limitation in s 5D of the 1911 Act beyond the commencing date, namely 24 June 1993. In her Honour's view, the effect of subsection 7(3) was to extend the monetary limitations in cases of death or total and permanent impairment so that an employer would be liable to pay no further amounts under the Transitional Act than it was liable to pay under the 1911 Act.

Her Honour also rejected an argument based on s 12 of the Transitional Act. The submission made was that the words "to the extent that it had not been discharged before the commencing day" (emphasis added) suggested a limitation on an employer's liability to the amount which was owing as at the commencing date, namely 24 June 1993, and indicated that the intention of the Transitional Act was to preserve limitations under the 1911 Act as to the extent or amount of liability.

In rejecting this submission her Honour considered that s 12 was simply a machinery provision concerned with fixing dates for reference purposes rather than a substantive provision relating to entitlement. Its effect was simply to assign the deemed date to liability incurred before that date, and was designed not to limit the quantum of such liability.

Present Appeal

The objective of the scheme of legislative provisions which included the Principal Act and the Transitional Act was to repeal in totality the 1911 Act and to enact a new regime of compensation for seafarers. The term "seafarer" means a person employed in any capacity on a prescribed ship, other than a
pilot, a temporary employee or special personnel under the Navigation Act. There is no contest that Mr Hore is a "seafarer".

The decision to reform the previous legislation resulted from the recommendations of Professor Harold Luntz in his Review of Seamen's Compensation, tabled in Parliament in 1988.

On the second reading speech it was stated in relation to the Bill for the Principal Act:

"This Bill introduces a new scheme of compensation and rehabilitation for seafarers who are injured in the course of their employment. It will replace the outdated and inadequate Seamen's Compensation Act 1911 with modern and comprehensive rehabilitation and compensation arrangements similar to those applicable to Commonwealth employees.

....

Professor Luntz's review of seamen's compensation was tabled in Parliament in June 1988. Since that time the Luntz review recommendations have been the subject of extensive consultations involving shipowners, the maritime unions and the ACTU. The outcome of this process is a Bill which radically moves away from the outmoded compensation regime which the Seamen's Compensation Act provides. The new scheme will combine fair, earnings- related benefits with comprehensive rehabilitation requirements and other measures aimed at getting injured employees restored to health and back to work as quickly as possibly." See H. of R. No. 14, 12-15 October 1992 at p 2145.

The Bill for the Transitional Act was stated to be designed to "facilitate a smooth and equitable transition of benefit entitlements and other arrangements under the current Act to those which will be provided under the new legislation."

It is clear that the Principal Act was designed to provide a totally new, detailed and comprehensive code with respect to the compensation of seafarers operative on and from 24 June 1993.

Accordingly, it is appropriate to approach the construction of the new Act and the transitional provisions on the basis that they were intended to be self-contained unless express provision was made to the contrary in the Principal Act. In other words the new Act is designed as a complete statement of all the statutory law on the issue of seafarers' compensation so far as incapacity is concerned. When speaking of the Criminal Code of Western Australia, Dixon and Evatt JJ in Brennan v R (1936) 55 CLR 253 at 263 pointed out:

"... its language should be construed according to its natural meaning and without any presumption that it was intended to do no more than restate the existing law. It is not the proper course to begin by finding how the law stood before the Code, and then to see if the Code will bear an interpretation which will leave the law unaltered."

The meaning of a code is to be ascertained in the first instance from its language and the ordinary and natural
meaning of that language is not to be qualified by considerations or implications deriving from the earlier law. Cf. Bank of England v Vagliano Bros [1891] AC 107 at 144-150 and Pearce and Geddes, Statutory Interpretation in Australia Third Edn at [8.6]-[8.10], 160-163.

Because the Transitional Act repeals the 1911 Act in its entirety, any limitation on the rights of the worker must thereafter be found in the Transitional Act or the Principal Act. This is not a case where the earlier Act has been amended or partially repealed and earlier rights preserved. Cf. Mathieson v Burton (1970) 124 CLR 1 at 20-22 per Gibbs J. Rights under the 1911 Act no longer exist. This is recognised by the reference in s 4 of the Transitional Act to the conversion of rights under the repealed Act to corresponding rights under the Principal Act. The present case does not involve preservation of previously existing rights but rather extinguishment of those rights and a replacement of them with new and different rights which may, in a broad sense, in some instances, "correspond" with the old rights or entitlements under the previous legislation.

It is against this background that the construction of sections 4, 7 and 12 of the Transitional Act must be approached.

Section 4 is a descriptive section. It summarises and describes in a generalised fashion the purpose and anticipated
effect of sections 4 to 14 of the Transitional Act. That section sets out the purposes against which, in cases of ambiguity, the Act may be construed. It does not itself impose obligations, limitations or qualifications on entitlement or liability under the Transitional Act or under the Principal Act.

It is s 6 of the Transitional Act which applies the Principal Act to injuries, loss or damage suffered before the commencing date. That section is expressed to be "Subject to this Part". Accordingly, it is subject to any provisions in that Part which qualify the operation of the Principal Act.

Counsel for the applicant contends that s 4 of the Transitional Act operates to qualify or restrict the operation of the Principal Act with respect to Mr Hore's entitlement.

In our view s 4 does not affect the operation of the Principal Act insofar as the rights or entitlements of Mr Hore are concerned. Section 4 is not a substantive provision. It is not expressed to be an overriding provision. Nor does it provide, for example, that the application of the Principal Act to any particular circumstances is to be limited as to quantum or liability by the 1911 Act.

The provisions of s 7 do not assist Union Shipping. Rather that section supports the contentions of Mr Hore. Mr Hore is not disentitled to further compensation under the Principal Act s 7(1). He suffered injury before the commencing date and compensation was payable in respect of that injury under the 1911 Act. This liability to payment was in existence as at the commencing date. Mr Hore was receiving payments up to the commencement date and further payments were accruing and were paid after that date. The word "payable" in that subsection clearly refers to liability for, and not the amount of, compensation. The provision is concerned with whether compensation is required to be paid, not with the quantum of such compensation.

A specific limitation as to quantum of compensation is found in s 7. In s 7(3) there is an express limitation. Limitations as to what the Part achieves or is intended to achieve are not to be inferred from any general descriptive summary set out in s 4. That provision was intended to assist in facilitating a "smooth transition" from the 1911 Act to the Principal Act and nothing more. The effect and operation of Part 3 is to be derived from an examination of its language according to its ordinary and natural meaning and no limitation is to be found in that Part, or in other sections of the Principal Act, or in the Transitional Act which restricts the amount of compensation for incapacity to that provided for under the earlier Act.

We agree with the observations made by her Honour with respect to s 7(3). The existence of this specific provision, which limits the amount of compensation in cases of permanent impairment or death to the same amount of compensation that would have been payable under the 1911 Act, as if the Principal Act had not been enacted, points to the conclusion that no similar restriction was intended to apply in cases of incapacity specifically and separately provided for in Division 3 of Part 2 of the Principal Act. As her Honour pointed out, it would have been a simple matter for clear and express provision to have been made if such was the intention of the legislation.

In relation to the contention that s 12 of the Transitional Act supports the application of a monetary limit, we reject the submission advanced by Union Shipping and agree with her Honour that this section is directed to fixing a deemed date on which liability was incurred and not to impose or indicate any quantum limit.

We consider that s 12 is not to be construed as qualifying or limiting substantial rights to compensation by reason of the indirect and somewhat oblique inference sought to be derived from the use of the words "... to the extent that it had not been discharged before the commencing day...".

Reference was made on behalf of Union Shipping to the statement in The Queen v Smith and Others (1873) 8 LRQB 146 at 150 that:

".... when an Act, or part of an Act, is incorporated by any form of words in a subsequent Act, the repeal of the first Act does not repeal the part incorporated in the second Act, without express words to that effect." (Emphasis added)

Section 12 of the Transitional Act is not a limitation provision. It does not operate to limit anything, nor can any limitation on quantum or liability be derived from it or read into it.

The statement above does not assist the appellant here because the limitations in s 5D of the 1911 Act are not incorporated in "any form of words" in the Principal Act.

We do not consider that the compensation entitlements of the respondent under the Principal Act are to be read down or limited as the result of s 12.

Conclusion on Appeal

In the present case a new code provided for by the Principal Act applies and the respondent was entitled to compensation payments on and after the date of commencement in accordance with the Principal Act. No limitation is to be implied from s 4 or any other part of the Transitional Act so as to impose a "cap" on the entitlement of the respondent under the Principal Act. Such constraints and qualifications as apply to the amount of entitlement of Mr Hore must be derived from the
provisions of the Transitional and Principal Acts. These Acts do not enact any limitations in respect of quantum of compensation as regards Mr Hore.

Accordingly, our conclusion is that the maximum amount provided for under s 5(D) of the 1911 Act does not apply to limit the entitlement of Mr Hore and this appeal should be dismissed with costs.

I certify that this and

the preceding sixteen pages (16)

pages are a true copy of the

Reasons for Judgment herein of

this Court

Associate:

Date: 2 November 1995

Counsel for Applicant: J E Maconachie QC

R S Sheldon

Solicitor for Applicant: Ebsworth & Ebsworth

Counsel for Respondent: L King SC

A Hughes

Solicitor for Respondent: W G McNally & Co

Date of Hearing: 20 September 1995

Date Judgment Delivered: 2 November 1995

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