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Re: COMMISSIONER FOR THE SAFETY, REHABILITATION AND COMPENSATION OF
COMMONWEALTH EMPLOYEES
And: DONALD CAMPBELL NEIL
No. ACTG43 of 1992
FED No. 176
Number of pages - 22
Administrative Law
(1993) 114 ALR 461
(1993) 17 AAR 247
(1993) 41 FCR 517
COURT
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves J(1)
CWDS
Administrative Law - Appeal from Administrative Appeals Tribunal - Workers'
compensation - Commonwealth employee suffering compensible injury and retiring
from his employment during the currency of Compensation (Commonwealth
Government Employees) Act 1971 (Cth) - Employee receiving pension under a
superannuation scheme - Act of 1971 repealed by Commonwealth Employees
Rehabilitation and Compensation Act 1988 (Cth) before amounts by way of weekly
payments of compensation made to employee - Whether employee a person who
immediately before the commencement of the Act of 1988 "was receiving weekly
payments of compensation under the 1971 Act" - Whether statutory provision to
be given its literal meaning - Whether literal meaning would result in an
operation of the provision which Parliament did not intend - Whether
appropriate to rely on Minister's second reading speech to ascertain
legislative intention - Whether more than one construction open.
Administrative Appeals Tribunal Act 1975 (Cth), s.44(1)
Compensation (Commonwealth Government Employees) Act 1971 (Cth), ss.27, 29,
46
Commonwealth Employees Rehabilitation and Compensation Act 1988 (Cth),
ss.19, 20, 123, 123A, 124, 131
Acts Interpretation Act 1901 (Cth), s.15AA
Cooper Brookes (Wollongong) Pty Ltd v. Federal Commissioner of Taxation
(1981) 147 CLR 297
HRNG
CANBERRA, 8 December 1992
#DATE 31:3:1993
Counsel for the applicant : Mr D.J. McGill
Solicitor for the applicant : Australian Government
Solicitor
Counsel for the respondent : Mr C.M. Erskine
Solicitors for the respondent : Ken Johnston Bedford and Co.
ORDER
The Court orders that:
1. The application be dismissed.
2. The applicant pay the respondent's costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal
Court Rules.
JUDGE1
NEAVES J This application by way of appeal pursuant to s.44(1) of the
Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the
Administrative Appeals Tribunal given on 9 July 1992 raises a point of
statutory construction. The relevant statutory provision is the definition of
"former employee" in s.123 of the Commonwealth Employees' Rehabilitation and
Compensation Act 1988 (Cth) ("the 1988 Act"). If the respondent falls within
that definition, the amounts of weekly compensation payable to him under the
1988 Act in respect of a period commencing on 1 December 1988 will be less
than those otherwise payable to him.
2. The essential facts, which were not in dispute before the Tribunal, may be
shortly stated. The respondent, Donald Campbell Neil, enlisted in the Royal
Australian Air Force on 10 November 1964 and was discharged on 9 November 1986
at the termination of his period of enlistment. On 29 November 1987 he lodged
a claim for compensation under the Compensation (Commonwealth Government
Employees) Act 1971 (Cth) ("the 1971 Act") in respect of back injuries
suffered on 25 February 1975 and in October 1980. As a consequence of each of
those incidents he was admitted to hospital for a short period. Following his
discharge from the Royal Australian Air Force the respondent was employed by
Chubb Australia Limited. That employment continued until 27 October 1989 when
it was terminated because of his back condition.
3. A determination had not been made in respect of the claim for compensation
prior to 1 December 1988 when the 1988 Act, which repealed the 1971 Act, came
into operation. On 22 February 1989, a determination was made under the 1988
Act that the respondent "contracted a disease, namely L4-5 and L5-S1
discogenic disease of the lumbar spine and his employment by the Department of
Defence was a contributing factor to the contraction of that disease and the
Department of Defence would have been liable to pay compensation under the
Compensation (Commonwealth Government Employees) Act 1971 in respect of that
condition (section 29)". It was further determined that 24 February 1978,
being the date on which the respondent first obtained medical treatment in
relation to the condition, was deemed to be the date of injury and that,
having regard to the transitional provisions of the 1988 Act, the Department
of Defence was liable to pay compensation in relation to that injury.
4. The 1971 Act had provided (s.27) that if personal injury arising out of or
in the course of the employment of an employee by the Commonwealth was caused
to the employee, the Commonwealth was, subject to the Act, liable to pay
compensation in respect of that injury in accordance with the Act. Section 29
of that Act applied where an employee contracted a disease or suffered an
aggravation, acceleration or recurrence of a disease and any employment of the
employee by the Commonwealth was a contributing factor to the contraction of
the disease or to the aggravation, acceleration or recurrence. If total or
partial incapacity for work resulted, the contraction of the disease or the
aggravation, acceleration or recurrence was to be deemed to be a personal
injury to the employee arising out of the employment of the employee by the
Commonwealth. Provision was also made concerning the date which was to be the
deemed date of the injury. Section 45 prescribed the amount of compensation
payable in respect of an injury resulting in the employee being totally
incapacitated for work and s.46 prescribed the amount payable in the case of
partial incapacity.
5. On 7 March 1989 the respondent underwent spinal fusion surgery. On 16
October 1989, a determination was made that, pursuant to s.19(2) of the 1988
Act, the respondent was entitled to weekly payments of compensation in respect
of the period 6 March 1989 to 14 July 1989 during which period he was unable
to work by reason of the operation.
6. On 2 March 1990, a determination was made that the respondent was entitled
to weekly payments of compensation in respect of the period 15 October 1987 to
22 November 1989 and from 23 November 1989 to a date to be determined by the
Commission for the Safety, Rehabilitation and Compensation of Commonwealth
Employees ("the Commission") or its delegate. The weekly payments in respect
of the period 15 October 1987 to 30 November 1988 were expressed to be
referable to s.46 of the 1971 Act. The remaining weekly payments were
expressed to be referable to s.131 of the 1988 Act. Although not expressed to
do so, the determination made on 2 March 1990 effected a revocation or
replacement of the determination made on 16 October 1989.
7. At the respondent's request, the determination was reviewed in so far as
it determined that his entitlement to weekly payments of compensation in
respect of the period commencing on 1 December 1988 was to be found in s.131
rather than s.19(2) of the 1988 Act. The determination having been affirmed
on 3 June 1991 by the respondent took the matter to the Administrative Appeals
Tribunal ("the Tribunal") which set aside the decision under review. The
Tribunal substituted a decision that the respondent "is an 'employee' as
defined in s.5(9) of the 1988 Act and is entitled to be compensated on the
basis of his partial incapacity which has continued since 1 December 1988". It
is in respect of that decision of the Tribunal that the present application is
brought.
8. At the material time, the 1988 Act provided (s.14) that, subject to Part
II of that Act, the Commission was liable to pay compensation in accordance
with the Act in respect of an injury (an expression defined in s.4(1) to
include a disease) suffered by an employee if the injury resulted in
incapacity for work. Section 19 provided for the amount of compensation to be
paid by way of weekly payments to an employee (other than an employee to whom
s.20 applied) who was incapacitated for work as a result of an injury.
Section 20 prescribed the amount of compensation to be paid for injuries
resulting in incapacity for work where the employee was in receipt of a
pension under a superannuation scheme. The amount payable was an amount
calculated under a prescribed formula. The effect of the provision was to
reduce the weekly amount of compensation that would otherwise have been
payable to the employee for a week under s.19 by an amount representing the
sum of "the superannuation amount" (an expression defined in s.4(1)) and the
amount of superannuation contributions that the employee would have been
required to pay in that week if the employee were still contributing to the
superannuation scheme. Section 20, however, applied only to an employee who,
being incapacitated for work as a result of an injury, retired voluntarily, or
was compulsorily retired from his or her employment at any time after the
commencement of the section (viz. 1 December 1988) and, as a result of the
retirement, received a pension under a superannuation scheme (s.20(1)).
Section 20, therefore, had no application to the respondent. It should be
added that the section had no counterpart in the 1971 Act.
9. Part X of the 1988 Act contained transitional provisions consequent upon
the repeal of the 1971 Act. Section 124(1) provided that, subject to Part X,
the Act applied in relation to an injury, loss or damage suffered by an
employee, whether before or after the commencing day (1 December 1988).
Section 123A, which was inserted by the Industrial Relations Legislation
Amendment Act 1991 (Cth) and which was to be taken to have commenced on 1
December 1988 (see s.2(2) of that Act), provided:
"A reference in this Part to an injury suffered before the
commencing day is a reference to an injury within the meaning of
whichever of the 1912 Act, the 1930 Act or the 1971 Act was in
force when the injury was suffered, as that Act was then in force."
10. A person was not entitled to compensation under the 1988 Act in respect
of an injury, loss or damage suffered after the commencement of the 1971 Act
and before 1 December 1988 if compensation was not payable in respect of that
injury under the 1971 Act as in force when the injury, loss or damage was
suffered (s.124(2)). Section 124(1A), a provision inserted at the same time
as s.123A and also to be taken to have commenced on 1 December 1988,
provided:
"Subject to this Part, a person is entitled to compensation
under this Act in respect of an injury, loss or damage suffered
before the commencing day if compensation was, or would have been,
payable to the person in respect of that injury, loss or damage
under the 1912 Act, the 1930 Act or the 1971 Act."
11. Division 3 of Part X had the heading "Special transitional provisions
relating to certain former employees". That Division, which comprised
ss.131-137 inclusive, made separate provision as to the amount of weekly
compensation payable under the 1988 Act to -
. former employees under 65 who were in receipt of
superannuation benefits (s.131);
. former employees under 65 who were not in receipt of
superannuation benefits (s.132);
. former employees 65 and over who were in receipt of
superannuation benefits (s.135); and
. former employees 65 and over who were not in receipt of
superannuation benefits (s.136).
Provision was also made for the minimum benefit payable to a former employee
(s.133), for the reduction of compensation payable to a former employee to
whom s.131 or s.132 applied on the former employee reaching 65 (s.134) and for
the redemption of the liability to make further weekly payments of
compensation to a former employee (s.137).
12. Prior to 13 September 1990, subs.(1) of that section was in the following
terms:
"(1) This section applies in relation to a former employee
who, on the commencing day, is under 65 and in receipt of a
pension under a superannuation scheme."
On and from 13 September 1990 there was an additional requirement that the
former employee be not capable of engaging in any work (see Commonwealth
Employees' Rehabilitation and Compensation Amendment Act 1990 (Cth), s.4).
That additional requirement is not relevant to the issue that arises for
determination in the present proceeding. It may be noted, however, that the
Act last cited made a similar amendment to s.132 and inserted a new s.132A.
That section applied to a former employee who was, on the commencing day,
under 65 and in receipt of a pension under a superannuation scheme and who was
capable of earning an amount per week in suitable employment.
13. Before turning to a consideration of the terms of s.131(1) and, in
particular, the meaning of the expression "former employee" in that
subsection, the text of the remaining subsections of s.131 should be set out.
Those subsections provided:
"(2) Subject to this Division, if the former employee's
total benefit immediately before the commencing day was equal to
or more than 95% of his or her normal weekly earnings as at that
day, the amount of compensation payable per week to the former
employee under this Act is the amount that, when added to the
former employee's superannuation amount, results in a combined
benefit equal to 95% of those normal weekly earnings.
(3) Subject to this Division, if the former employee's total
benefit immediately before the commencing day was equal to or more
than 70%, but less than 95%, of his or her normal weekly earnings
as at that day, the amount of compensation payable per week to the
former employee under this Act is an amount equal to the
employee's 1971 amount.
(4) Subject to this Division, if the former employee's total
benefit immediately before the commencing day was less than 70% of
his or her normal weekly earnings as at that day, the amount of
compensation payable per week to the former employee under this
Act is the amount that, when added to the former employee's
superannuation amount, results in a combined benefit equal to 70%
of his or her normal weekly earnings for the time being.
"(5) Whenever the superannuation amount of a former employee
referred to in subsection (2) or (3) is increased, the amount of
compensation payable under that subsection shall be reduced, or
further reduced, as the case requires, by:
(a) an amount equal to the amount of the increase; or
(b) an amount that will result in a combined benefit equal
to 70% of the former employee's normal weekly earnings
as at the date of the increase;
whichever is less.
(6) Subsection (5) does not require a reduction or further
reduction in the amount of compensation payable to a former
employee under subsection (2) or (3) where the reduction or
further reduction would result in a combined benefit of less than
70% of the employee's normal weekly earnings as at the date of the
increase in the superannuation amount."
14. The expression "superannuation scheme" was defined in s.4(1) to mean any
superannuation scheme under which the Commonwealth or a Commonwealth authority
made contributions on behalf of employees and to include a superannuation or
provident scheme established or maintained by the Commonwealth or a
Commonwealth authority. The expression "superannuation amount" was also
defined in that subsection as follows:
"'superannuation amount', in relation to a pension received by an
employee in respect of a week, or a lump sum benefit received by
an employee, being a pension or benefit under a superannuation
scheme, means an amount equal to:
(a) if the scheme identifies a part of the pension or lump
sum as attributable to the contributions made under
the scheme by the Commonwealth or Commonwealth
authority - the amount of that part; or
(b) in any other case - the amount assessed by the
relevant authority to be the part of the pension or
lump sum that is so attributable or, if such an
assessment cannot be made, the amount of the pension
received by the employee in respect of that week or
the amount of the lump sum, as the case requires."
15. Other expressions in s.131 were defined in s.123 which provided:
"In this Part:
'combined benefit', in relation to a former employee, means an
amount equal to the sum of:
(a) the amount of compensation payable to the former
employee under this Act; and
(b) the employee's superannuation amount;
'commencing day' means the day on which this Part commences;
'former employee' means a person who, immediately before the
commencing day, was receiving weekly payments of compensation
under the 1971 Act in respect of an injury resulting in an
incapacity and had ceased to be an employee within the meaning of
that Act before that day;
'total benefit', in relation to a former employee, means an amount
equal to the sum of:
(a) the amount of compensation payable per week to the
former employee under the 1971 Act; and
(b) the employee's superannuation amount;
'1971 amount', in relation to a former employee, means the amount
of compensation that was, immediately before the commencing day,
payable per week to the former employee under the 1971 Act."
It may be noted that, although Division 3 of Part X was amended by the
Commonwealth Employees Rehabilitation and Compensation Amendment Act 1990
(Cth), no amendment has been made to the definition of "former employee" in
s.123.
16. It is common ground that, on 1 December 1988, the respondent was under 65
years of age and in receipt of a pension under a superannuation scheme within
the meaning of that expression in s.131(1). It is also clear that the
respondent had satisfied the requirement set out in the definition of "former
employee" in s.123 that he had ceased to be an employee within the meaning of
the 1971 Act before 1 December 1988. The question for determination by the
Tribunal was whether he was a person who, immediately before 1 December 1988,
"was receiving weekly payments of compensation under the 1971 Act".
17. The Tribunal declined to accede to the submission put to it on behalf of
the Commission that the words "person who, immediately before the commencing
day, was receiving weekly payments of compensation under the 1971 Act in
respect of an injury resulting in incapacity" were apt to include not only a
person who was physically in receipt of such weekly payments at the relevant
time, but also a person who was entitled to receive such weekly payments by
reason of events that had occurred before the commencing day notwithstanding
that, before that day, no amounts of weekly compensation had been received and
no determination of entitlement to such payments had been made. The Tribunal
regarded the submission advanced on behalf of the Commission as requiring that
the definition of "former employee" be read as if the words "or entitled to
receive" were inserted after the words "was receiving". The Tribunal,
concluded that, on the proper construction of the definition, the respondent
was not within its terms with the consequence that s.131 of the 1988 Act was
not applicable to him. The determination under review was, therefore, set
aside.
18. On the hearing of the present application, counsel for the Commission
conceded that, if the definition of "former employee" in s.123 of the 1988 Act
was to be read literally, the respondent was not within that definition as he
was not physically in receipt of weekly payments of compensation under the
1971 Act immediately before 1 December 1988. However, he submitted that the
definition should not be read literally but that the words "was receiving" in
the definition were to be construed as meaning "was entitled to receive".
This departure from the natural and grammatical meaning of the words "was
receiving" was said to be justified not because the words would, if given
their natural and grammatical meaning, be ambiguous or uncertain but because a
literal reading of the words would give s.131 of the 1988 Act an operation
which, it was submitted, the Parliament obviously did not intend. He referred
to Cooper Brookes (Wollongong) Pty Ltd v. Federal Commissioner of Taxation
(1981) 147 CLR 297, Catlow v. Accident Compensation Commission (1989) 167 CLR
543 at p 552 and Mills v. Meeking (1990) 169 CLR 214 at p 233.
19. It was submitted that the consequence of reading the definition literally
was to give s.131 an operation that was arbitrary and capricious. The example
was taken of two employees each of whom on the same day, being a day prior to
1 December 1988, suffered an injury in the course of his employment with
resultant incapacity for work, each of whom was on 1 December 1988 under 65
and in receipt of a pension under a superannuation scheme and each of whom
ceased to be an employee prior to that date. It was said that those employees
would be treated differently for compensation purposes under the 1988 Act
depending on whether the employee had received a weekly payment of
compensation before that date. The employee who had received such a payment,
it was submitted, would receive less by way of weekly payments of compensation
under the 1988 Act after 1 December 1988 than the employee who had not
received such a payment. There was, it was submitted, no rational basis for
such an operation of the provision. By contrast, it was said, the provision
could be given a rational and reasonable operation if it was construed as
applying to an employee who satisfied the other requirements of s.131(1) and
the definition of "former employee" in s.123 and who was, immediately prior to
1 December 1988, entitled to receive weekly payments of compensation under the
1971 Act by reason of events that had occurred prior to that date.
20. Counsel for the Commission also sought to rely on the use of the word
"payable" rather than "paid" in the definition in s.123 of the expression
"1971 amount". It was submitted that, if the definition of "former employee"
were read literally, the two definitions were not consistent. Consistency
could be achieved, it was said, by reading the definition of "former employee"
in the way contended for by the Commission.
21. In support of a submission that the draftsman had clearly made a mistake
in limiting the definition of "former employee" to employees who, immediately
prior to 1 December 1988, were receiving weekly payments of compensation under
the 1971 Act, counsel referred to the second reading speech of the Minister
for Social Security in relation to the Bill which became the 1988 Act. The
Minister said:
"The Commonwealth Employees' Rehabilitation and Compensation Bill
1988 seeks to repeal the Compensation (Commonwealth Government
Employees) Act 1971 and to introduce a new scheme of compensation
and rehabilitation for persons who are injured in the course of
their employment by the Commonwealth. Between 1976 and 1986, the
Commonwealth's expenditure on workers' compensation increased by
over 700 per cent, from $25.04m to $203.29m per annum. Clearly,
this situation could not be allowed to continue. Accordingly, the
Government decided that the compensation Act should be reviewed
with the aim of establishing a more equitable and cost-effective
compensation system, with particular emphasis on the
rehabilitation of injured employees. The result is a Bill which,
when it comes into operation, will provide for many important
changes in the compensation system and the circumstances in which
compensation will be payable. The Bill will minimise the human
and financial cost of work-caused injury and disease while at the
same time providing adequate compensation and support for long
term incapacitated employees.
....
This Bill will also seek to reduce the unreasonable costs
associated with work-related injuries by introducing measures to
prevent double dipping by employees using sick leave payments or
superannuation entitlements while on compensation. For example,
many employees who have been retired on invalidity grounds under
the current legislation enjoy benefits under both compensation and
superannuation schemes at a rate considerably in excess of their
previous income. Special transitional provisions relating to the
combined superannuation and compensation benefits payable to
employees who have been invalided out of employment are contained
in the Bill."
It was submitted that the legislation should be given an interpretation to
promote its purpose as expressed by the Minister, namely "to prevent double
dipping by employees using .... superannuation entitlements while on
compensation". Reference was made to s.15AA of the Acts Interpretation Act
1901 (Cth) which provides:
"In the interpretation of a provision of an Act, a
construction that would promote the purpose or object underlying
the Act (whether that purpose or object is expressly stated in the
Act or not) shall be preferred to a construction that would not
promote that purpose or object."
22. Counsel for the Commission advanced an alternative submission to the
effect that the test whether the respondent was receiving weekly payments of
compensation immediately prior to 1 December 1988 could be satisfied
retrospectively in the sense that it was not necessary to test the matter as
at 1 December 1988. According to this alternative submission, if a payment of
compensation was made to a person after 1 December 1988 in respect of a period
immediately prior to that date or in respect of a period which included such a
period, it was appropriate to treat the person as falling within the
definition of "former employee". According to the submission, that approach
would not do "quite as much violence to the actual words used" in the
definition and would bring within the definition only persons who, it was
said, were to be regarded as having received weekly payments of compensation
under the 1971 Act albeit that those payments were not made prior to 1
December 1988. It was suggested that this approach would avoid the
possibility, inherent in the primary submission, of including in the
definition a person who was entitled to weekly payments of compensation under
the 1971 Act but who did not, in fact, receive such payments.
23. In Cooper Brookes (Wollongong) Pty Ltd v. Federal Commissioner of
Taxation (supra), the High Court, by majority, gave to a provision of the
Income Tax Assessment Act (1936) (Cth) a meaning other than its literal
meaning. The Court held it was permissible to do so because, having
identified, from a consideration of the nature of the provision and its
context and an examination of the legislative history, what was the intention
of the legislature, the Court was satisfied that the expression of that
intention had miscarried by reason of a mistake on the part of the draftsman
and that the intention would not be carried into effect unless there were a
departure from the literal meaning. In the course of his judgment, Gibbs CJ
said (pp 304-5):
"It is an elementary and fundamental principle that the object of
the court, in interpreting a statute, 'is to see what is the
intention expressed by the words used': River Wear Commissioners
v. Adamson (1877) 2 App Cas 743 at p 763. It is only by
considering the meaning of the words used by the legislature that
the court can ascertain its intention. And it is not unduly
pedantic to begin with the assumption that words mean what they
say: cf. Cody v. J.H. Nelson Pty Ltd (1947) 74 CLR 629, at
p 648. Of course, no part of a statute can be considered in
isolation from its context - the whole must be considered. If,
when the section in question is read as part of the whole
instrument, its meaning is clear and unambiguous, generally
speaking 'nothing remains but to give effect to the unqualified
words': Metropolitan Gas Co. v. Federated Gas Employees'
Industrial Union (1925) 35 CLR 449, at p 455. There are cases
where the result of giving words their ordinary meaning may be so
irrational that the court is forced to the conclusion that the
draftsman has made a mistake, and the canons of construction are
not so rigid as to prevent a realistic solution in such a case:
see per Lord Reid in Connaught Fur Trimmings Ltd v. Cramas
Properties Ltd (1965) 1 WLR 892, at p 899; (1965) 2 All ER
382, at p 386. Examples of that sort of case may be found in
Maxwell on the Interpretation of Statutes, 12th ed., (1969), at
p 228 et seq., and Craies on Statute Law, 7th ed., (1971), at
p 520 et seq. However, if the language of a statutory provision
is clear and unambiguous, and is consistent and harmonious with
the other provisions of the enactment, and can be intelligibly
applied to the subject matter with which it deals, it must be
given its ordinary and grammatical meaning, even if it leads to a
result that may seem inconvenient or unjust. To say this is not
to insist on too literal an interpretation, or to deny that the
court should seek the real intention of the legislature. The
danger that lies in departing from the ordinary meaning of
unambiguous provisions is that 'it may degrade into mere judicial
criticism of the propriety of the acts of the Legislature', as
Lord Moulton said in Vacher and Sons Ltd v. London Society of
Compositors (1913) AC 107, at p 130; it may lead judges to put
their own ideas of justice or social policy in place of the words
of the statute. On the other hand, if two constructions are open,
the court will obviously prefer that which will avoid what it
considers to be inconvenience or injustice. Since language, read
in its context, very often proves to be ambiguous, this last
mentioned rule is one that not infrequently falls to be applied."
Stephen J said (p 310):
"Statute law, the direct product of the legislature, is perhaps
the least appropriate field of all in which to indulge in judicial
law-making. The corner of that field occupied by closely drafted
statutes of high complexity should be particularly uninviting to
the judicial law-maker. It provides the very antithesis of those
occasional legislative measures which lay down only general
principles and invite the courts to supply the details. It can
never be enough to justify judicial intervention that what has
been enacted may seem to a court to lead to an irrational result.
As Lord Reid said in Cramas Properties Ltd v. Connaught Fur
Trimmings Ltd (1965) 1 WLR 892, at p 898; (1965) 2 All ER
382, at p 385: 'Of course we must go by the words of the Act and
if they are only capable of one meaning then we must take that
meaning however irrational the result.' Moreover, in the present
circumstances, while the bare outcome of the taxpayer's view of
s.80C(3) is certainly unexpected and out of harmony with the
legislative pattern which seems otherwise to emerge from these
sections, it may not qualify for the epithet of irrational."
Mason and Wilson JJ said (pp 320-1):
"Generally speaking, mere inconvenience of result in itself is not
a ground for departing from the natural and ordinary sense of the
language read in its context. But there are cases in which
inconvenience of result or improbability of result assists the
court in concluding that an alternative construction which is
reasonably open is to be preferred to the literal meaning because
the alternative interpretation more closely conforms to the
legislative intent discernible from other provisions in the
statute.
....
In some cases in the past these rules of construction have been
applied too rigidly. The fundamental object of statutory
construction is every case is to ascertain the legislative
intention by reference to the language of the instrument viewed as
a whole. But in performing that task the courts look to the
operation of the statute according to its terms and to legitimate
aids to construction.
The rules, as D.C. Pearce says in Statutory Interpretation, p 14,
are no more than rules of common sense, designed to achieve this
object. They are not rules of law. If the judge applies the
literal rule it is because it gives emphasis to the factor which
in the particular case he thinks is decisive. When he considers
that the statute admits of no reasonable alternative construction
it is because (a) the language is intractable or (b) although the
language is not intractable, the operation of the statute, read
literally, is not such as to indicate that it could not have been
intended by the legislature.
On the other hand, when the judge labels the operation of the
statute as 'absurd', 'extraordinary', 'capricious', 'irrational'
or 'obscure' he assigns a ground for concluding that the
legislature could not have intended such an operation and that an
alternative interpretation must be preferred. But the propriety
of departing from the literal interpretation is not confined to