SUPERANNUATION - Benefit classificatisn certificate - zonaidering medical reports - Death cf emplicyse pricr certificate - Whether if certificate ts issue it must within a reasonable time after medical reaperts receive temporal limitations to be implied into statutory ses because provisions said to operate unfairly in absence limitation. Acministvative Appears Tribunal Ast 2275 (2th), 3.44 surerannuation Act 1976 (Cth:, ss.16, 32 cANICE BEVERLY NEAL v. COMMISSIONER FOP SuUPEDANNUATIION ACT G 51 of 1986 Fox, Neaves and Beaumont IJ. 4 June 1937 Sydney $4. fe be cr hd @lay in o is2ue of suc - Whether 3icns of iN THE FEDERAL COURT OF AUSTRALIA ) ) ) ) No. ACT S 51 of 13ee DISTRICT REGISTRY ) ) ) GENERAL DIVISTON ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: ZJANTCE BEVERLY NEAL Applicant AND: COMMISSIONER FER SUPERANNUATICN Pesponcent MINUTE OF ORDER COURT : Fox, Neaves and Beaumont JJ. IS} wo rH o ry Ss) ES) E 4 June 1987 AHERE MADE : Sydney THE COURT ORDERS THAT: l. The application be dismissed. 2. The applicant pay tne respondent's costs cf the application. Note: Settlement and entry of craers is dealt witn in Oraer 36 or the Federal Court Rules IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ) ) ) } No. ACT G 51 of 1986 ) ) ) GENERAL DIVISION QN_APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS 'URIBUNAL BETWEEN : JANICE BEVERLY NEAL Applicant AND: COMMISSIONER FOR Responcent (o) [e) -O lead = Fox, Neaves and Beaumont JJ. D s if f 4 June 19937 REASONS FOR JUDGMENT FOX and NEAVES JJ. This application by way of appeal from a decision of the Administrative Appeals Tribunal raises the question wnether the Commissioner for Superannuation ( the "ommissioner" was authorised by s.16(19) of the Superannuation Act Lara (Tern) ("the Act") to 1ssue on 30 May 1984 a benefit classifucaticr certificate in respect of the iate Robert Clauae Neal. The circumstances in which the question arises are as follows. On 2 November 1981 Mr Neal, who was scorn on Le june tay i%47, j301nea the Australian Public Service as a iviver witn tne \, Department of the Capital Territory and trus became an "eligible employee" within the meaning of that expression in s.3(1) of the Act. For the purposes of tne Act, he was required by a delegate of the Commissioner t9 submit nimself for medical examination by a Commonwealth Medical Officer. On 7 December 1981 he was examined by Dr J.d. McCarthy, an approved medical practitioner within the meaning of that expression in s.16(2) of the Act. Dr McCarthy reported to the Commissioner that, in his opinion, Mr Neal was fit for appointment to the Australian Public Service but did not meet the general medical standard due to the condition "migraine". Om 11 December 381, Dr H.S. Turner, Senisr Medisal Officer, reported to the Ccmmissioner that she concurred in chat Opinion. The general medical standard referred to forms rart of the Handbook for Commonwealth Medical 'Ufficers. Tt is designed to assist in the cliassification of new contributors to the Superannuation Fund established dy the Act and serves as a guide in assessing 1n a particular case wnether to recommend the issue of a benefit classification certificate. Upon his appointment to the Australian Public Service, Mr Neal became a contributor to. the Superannuation Fund. He cemained an "eligible person' and, as such, a contributor ca the Fund until his death on 16 December 1%33 from a myocardcial anfarction, a condition inno way celates to the cardici (e] " u ""niadraine"™. fe appears cnat no consideration was tTiven oy tac . co iO] rk Commissioner 2* any ar his deiegates to "he metical er is Ww made by Dr McCarthy and Dr Turner until 21 December 1923. The delay in considering the reports was said to he due to substantial arrears of work in the Commissioner's office. A delegate of the Commissioner on that date decided under s.16(4) to issue a benefit classification certificate in respect or Mr Neal specifying the condition "migraine". However, before tne certificate infact issued, advice of Mr Neal's death was received and it 1s common ground that the power to issue a certificate under s.16(4) did not survive Mr Neal's death on 16 December 1983. On 30 May 1984, a delegate of the Comm:issicner purported to act pursuant to s.16(10) of the Act. Te 1) tr delegate, mot being satisfied that Mr Neai's death was no caused, and was not substantially contributed to, by a pnvsica. or mental condition that existed at the time he became an eligible employee, or by a physical or mental condition connected with such a condition, issuec in respect of nima benefit classification certificate specifying the condirticns "migraine" and "history of anterior myocardial infarction". Those were conditions which, in the opinion of the delegate, existed at the time Mr Neal became an eligible empicyee. That certificate, if validly .ussuca, was deemed, oy S.iriiur, to have been in force in respect of Mr Neal immediately before nis death. The delegate was also of opinion that Mr Neal's death was caused, or was substantially contributed te, cry the condition "history of anterior myodardial infarction" spweciiicd in the certificate or by a physical condition ccnmectaq witn that condition tsee s.81(2)(2)} oe: the Act>. The issue on 30 May 1984 of the benefit classification certificate and the opinion formed by the delegate under s.81(2)(c) of the Act affected the benefits which wouia have been payable under the Act to the applicant as Mr Veal's surviving spouse if such certificate had not been issued or 1f that opinion had not been formed. Where an eligible employee who dies before attaining his maximum retiring age 1S survived by a spruse, there was in torce in respect of the eligible employee, immediately berrre rt r a \T his death, a benefit classification certi abe ana oth Commissioner is of the opinion that the eciigibie emplcyee s death was caused, or was substantially contributed ta, aya physical or mental condition or conditions specifiec in tne certificate or by a physical or mental condition or canditions connected with such a condition or conditions, tne spouse 1s entitled to benefits under the Act as prescribed by s5.81(2). The amount of benefit payable varies according to the pericd cf contributory service of the eligible employee. Where the period of such service 1s not less than " years, the spouse may pe entitied to make an e@lecriar crises 5.86 or under 5.87 of the Act. If tne spouse cuec rot aawe an election under either of those sections, the spouse 15 entitled to spouse's pension at an annual rate of 57 ver centum cf the annual rate of invalidity pension co wich the deceane: eligible employee would have been entitied under s.70 if ao had not died, but had, on the day immediately tc lowing the date sr 5. his death, become entitled to invalidity pension in accordance with that section. The annual rate of invalidity pension to which the eligible employee would have been so entitied would have been a percentage of his final annual rate of salary, the percentage varying according to his period of prospective service and his number of complete years of contributing service. In the case of an employee with prospective service of not less than thirty years, the percentage would vary from 28 per centum in the case of an employee with eight complete years of contributory service rising ona graduated scale to 66.5 per centum where the number of complete years of contributory service totals 19. If the spouse makes an election under s.86, the spouse 1s entitied toa reduced rate of cension and, in addition, a lump sum benefit -2dqual to 'the accumulated contributions of the deceased eligible emri fe) ye 1D ow In each of the cases mentioned above, adjustments are made to the rate of benefit if there are eligible children of the eligible employee or if the deceased eligible employee had paid supplementary contributions to the Fund. If the spouse is entitled to make, and makes, an election under 5.87, a lump sum benefit only is payable. Where the period of contributory service of the eligible employee is less than eight years, as was the case with Mr Neal, the spouse is entitied to ai lumo sum bherefit equal to the lump sum benefit to whicn the deceaced eligicle employee would have been entitlea under 2.73(2) 1f ne "ai not died, but had, on the day immediately following the date cf nit ageath., become entitled *o aunvalidity teneric. tr sutn 6. circumstances, the invalidity benefit payable to the eligible employee would have been an amount equal to - (a) three and one-half times the employee's accumulated basic contributions; or (b) one-half of the amount that 1s che amount per annum of the employee s final annual rate of salary, whichever would be the greater. An additional lump sum 15 payable if the eligible employee had paid supplementary contributions to the Fund. At this point reference should be made in greater detail to the provisions of s.16 of the Act. By vartue fF 5.3602) the Commissioner may, for the purposes cf s.i6, require a person (with certain exceotions immaterial for present purposes) who proposes tc become or becomes an eligible employee to undergo such medical examination or examinations by an approvea medical practitioner ig] m ie] rh practitioners as the Commissioner determines. A report the result of any medical examination is to be furnicned t fay the Commissioner (s.16(3)). Section 16:4) provides: "(4) The Commissioner shall consider the report or reports, and such other matters ' any) as the Commissioner considers relevant, ana, 1f he is of the opinion that the person is mok likely, by reason of or for a reason connected with a physical or mental condition or conditions referred to in the report cr revorts, to continue to be an eligibsle employee until the persen attains Als maximum retiring age, che Commissioner shali issue a denefit classificatior certificate to that effect, neing a certiticats im wnich the relevant cancitioar or conditions i: or are specified." Section 16(5) provides: ""(5) In the application of this Act to an eligible employee at any time, a reference in this Act to a benefit classification certificate that is in force in respect of an eligible employee shall, in the case of an eligible employee whose period of contributory service would, 1f he ceased to be an eligible employee at that time, be not less than 20 years or an eligible employee who has attained his maximum retiring age, be read as not auncluaing a reference to a benefit classification certificate that has been issued in respect of him." An eligible employee in respect of whom a benerit Classification certificate 1S in 'force may request the Commissioner to revoke or vary the certificate ana, cif he does so, he may be required to undergo such furtner medical examinations (1f any) as the Commissioner requic ib '5.16(6)). Reports of the results of such examinations are to be furnished toa the Commissioner (s.1h(7)). Secticn 16(8) sets out the circumstances in whith the benefit classification certificate 1s to be revoked or varied. Section 16(10) rrovides: "(10) Where - (a) a person who 21s an eliqible employes dies or ceases to be an ei1aqibie employee by reason of retirement on the ground of invalidity - (1) before he has uncerqone a medical examination or examinations a: required under sub-section '/?,; (12) a1f he NaS ancersine Sutr ar examination or examination L 3 - before the report or revoorts af 8. the result or results of the examination or examinations has or have been considered by the Commissioner; {1i1) aif the report or reports has or have been considered Try the Commissioner - before the Commissioner has reached a decision as to whether ne sSnouid issue a benefit classification certificate in respect of the person under sub-section (4); or (iv) aif the Commissioner has decided to 1ssue a benefit classification certificate in respect of the person under sub-section (4) - before the certificate has been 1ssued; and (b) the Commissioner 1s not satisfied thar his death or the incapacity which was the ground for his retirement, was not caused, and was not substantially contributed to, by a physical or mental condition or conditions of the person that existed at the time the overson became an eligible employee, or cy a physical or mental condition or conditions connected with such Ey condition or such conditions, the Commissioner shall issue in respect of the person a benefit classification certificate ain which there 1S or are specitied the physical or mental condition or conditions of tne person which, in the opinion of tne Commissioner, existed at the time the person became an eligible employee and, for the purposes of tnis Act, tne certificate shall be deemed to nave been in farce in respect of the person immediately before nis death or retirement." Section 16(11) provides for the case where 'na eligible employee, at or in connexion with ai medical examination which he was required to underga, failed t2 furnich any anformation wnich he was required t3d rurnien or furnished false information, Tf the Wommissitaner it satisfied that the prescribed circumstances =xist, 12 13 obliged to issue a benefit classification certificate notwithstanding that the person has ceased to be an eligible employee by reason of death or retirement on the aground of invalidity. It 1s, however, unnecessary to set out the provision in full. Section 154(4) of the Act should also be noticed. It provides that, upon the receipt by the Commissioner of a request by a person affected by a reviewable decision to reconsider that decision, the Commissioner 1s to reconsider the decision and "nay confirm or revoke the decision or vary the decision in such manner as he thirks fit'. The expression "reviewable decision" clearly includes a aecision ta issue a benefit classification certificate. The applicant, having unsuctessfully sougnt a review under s5.154(4), sought a review by the Administrative Appeals Tribunal of the d¢decision to issue the bdenefit classification certificate. It was argued before the Tribunal that the scheme of the Act requires a benefit classification certificate to De issued, 1f at all, within a8 reascnable time after the Commissioner has received the medicas revort: wnictn he is, by s.16(4), required to consider. The Tribunal rcjyected that argument. conclucing that a conditiin as te stasenari> time should not be implied. am the qyoint rveasors for treis decision, two members of the Trim.wmal, Davies J. ara Le L.B, Travers, sald: 10. "Parliament has specified a procedure to o»17e followed but has not specified any time within which the steps should ove taxen. 'Reasonable time' 1S an amorphous concept and scarcely a workable test in relation to routine decision making. In the Act, there 1s no guide as to time against which to judge reasonableness. We do not think Parliament intended that i court or tribunal should specify a period of 3 months, 6 months, 1 year, 2 years or 3 years as a reasonable period for the ordinary case which involves no difficulty. Yet, that 1s what would have to be done if Mr Crowe's submissions were to be accepted. The functions which s.16(4) repose upon the Commissioner are Mandatory. They are not discretionary. The Commissioner 1s under a statutory duty to consider the medical reports. In our opinion, 1t ought not to be implied that Parliament intended that the medical reports be considered within a reasonable time or not at all. Section 16(4) not only confers power upon the Commissioner to consider the medical reports and, 1m an appropriate case, to issue a benefit classification certificate, it imposes a dutw upon him to do so. No time limit for carrying out that duty 15 specified and, in our opinicn, none ought to be implied." The other member of the Tribunal, Mr E. Smith, agreed with that view. Davies J. and Dr Travers, however, canstrued 5.16(10) of the Act as having no operation ina case wnere the Commissioner has failed to perform a duty which s.16(4) imposes upon him, whether that failure results from a deliberate decision not to perform it or becaurce the performance of the duty was overlooxed due to 17s5 or misplacement of documents or simply from inattention to tne performance cf the duty. The sub-section was reid +. aupiy oniy where fne Commissioner fas nct aad tine 12 consiaer tne 11. medical report or reports or has not had time, after such consideration, to 1rssue a benefit classification certificate. The joint reasons for decision proceed: "If Parliament had simply intended that the s.16(10) power should be excrcised whenever the Commissioner had not previously made a decision as to the issue of a benefit classification certificate or, having made a decision to 1S5sue a certificate had not done so, Parliament would have said so." The Tribunal, however, accepted that the delay on the part of the Commissioner 1n considering the mediral report relating to Mr Neal was due tc the limztation in the staff resources available to him and not to any deliberate policy not to carry out his' function. The Tribunal, therefore, concluded that, while the Commissicner was slow in fulfilling the duty which s.16(4) imposed aon him, he hac not abandoned or otherwise neglected to fulfil that duty. In the result, the decision under review was affirmed. It ro 1S against that decision that the applicant has appealed to this Court. On the hearing of the appeal neitner party supported the construction placed upon 5.16(1°) by the Tribunal. Counsel for the applicant submit!.3 that certain temporal limitations should be read into ss.lb6(2) ane 15:4). Thus s.16(2) was to be canstrued so that the Commissiarer might only make the initial requirement that rhe perzan undergo a medical examination as soon as prrcticakle, cr alternatively within a reascnabie time, afer the vercon 12. becomes an eligible employee, the argument presumably allowing a Similar time scale for requiring any subsequent medical examinations considered necessary. Similarly, s.16(4) was to be read so that the Commissioner may only 1ssue a benefit classification certificate 1f the reports and other material referred to ain the sub-section are considered and a decision made thereon as soon as practicable, or alternatively within a reasonable time, after the receipt thereof. Having so construed ss.16(2) and 16(4), the submission espoused a construction of s.i6(19) which would limit its operation to those cases in which the death of the eligible employee, or his retirement ar the ground of invalidity, occurs prior to the exriraticn of the temporal limits which, if the arqument were accepted, wou_2 be implied into ss.16(2) and 16(4). Counsel for the respondent, on the other hand, submitted that tne ianguage of the sub-sections was clear and unambiguous, that so construed the provisions gave effect to the intention of the legislature, and that there was no warrant for implying any words of limitation. The limitations which the applicant scuqnt to nlace upon the operation of ss.16(2), '4) and (19) were said toe arise, not because the pyrovisions were not capapie oF operating according to their tenor, but opecause 1t Was perceived that, unless limited in some such manner az '12~ ested, the provisions would oaserate tc: treat sone ~ C g Q in} Pa) Lo fa) 1ligibl mplovees differently from covmpers and in a way ctnat was siid tc be unfair to them. Delay cr the cast oF fae 13. Commissioner in determining under s.16(4) whether to issue a benefit classification certificate was said to work unfairness in two related ways. First, 1t was said te be unfair because the eligible employee would not be made aware of the possibility that the benefits payable under the Act might be affected inthe event of his death or eariy retirement. Secondly, the right of the eligible employee to seek under s.16(6) the revocation or variation of the benefit classification certificate could not, of necessity, be exercised until a decision was taken to issue sucha certificate and the certificate was, in fact, issued. Similarly, it was said to be unfair, in the sense of promoting uncertainty, aif the power in 3.16/10) t5 issue a benefit Classification certificate were nou strictly confined as a power ancillary to, and in aictl, that conferred by s.16(4) and available only where the exercise of that power was frustrated by the death of the eliyible employee or his early retirement on the grount of invalidity. The comment, however, must be made tnat, even 1f it be thought that the statutory provisions orerate ir some circumstances in a harsh or drastic 3 rs iv pa] th yp i rs x wp <q it fa) fu rt of itself provides no justification for tne Court importiny words into the statute in an endeavour to amelorzate thet Situation. A reading of ss.16(4) and 16(10) discloses that rhe powers which they respectively confer do not overlap. Section 16(10) is expressed in such terms that 2:4 cain pave 1? operation uncii the person has ceacac +a he _:, 2l1igis.e 14. employee by reason of death or retirement on the ground of invalidity. On the other hand, s.16(4) can only operate prior to either of those events occurring. It 1s also of some importance that s.16(10) poses a different question for the Commissioner than that posed by s.16(4). Section 16(4) focuses attention on the physical or mental condition referred to in a medical report furnished to the Commissioner pursuant to s.16(3). Tt 1s only in respect of such a condition that a benefit classification certificate may 1ssue under that sub-section. Under s.16(10), however, the question for the Commissioner 15 whether the xserson was suffering from a mental or physical condition at the time ne became an eligible employee, 1t being immaterial whether that conditicon was specitied in a medical repert furnished to him. In considering the arqument presented to the Court on behalf of the applicant it 15 essential to bear weil in mind that ss.16(4) and 16(10) do not simply confer powers on the Commissioner - they each impose a statutcry duty upon him to issue a benefit ciassification certificate whenever the prescribed circumstances exist. The Jlanquase in woich the provisions are cast leaves no room for doubt tnar that was the legislature's intention. Yet, tre essence of the applicant's argument 1s that the duty which each sub-section imposes does mot survive the expiration ct che rartod ascertained by reference to the temporal limitations whi: rhe iicant submits should be read into far vrovisicr:. ia} ra] m a 9 recognise 'That as being the essence af the apr.irant's 15. argument 1s to demonstrate the fallacy on which the argument 1s based. Let 1t be assumed that, ina particular case, the Commissioner's conduct in failing to make a decision as soon as practicable, or alternatively within a reasonable time, after the receipt of the medical report upon the eligible employee amounts toa failure to perform the duty imposed upon him. In such circumstances, the Commissiorer would not be relieved, by reason of his conduct, from any further obligation to fulfil the duty. On the contrary, in an appropriate case, the law would, by the issue of a mandamus or an order in the nature of a mandamus, require that the duty be fulfilled. We can find no justification 'rer attributing to the legislature the result which acceotarce of the applicant's argument would require. The operation of s.1l6'10) depends on tne non-occurrence of one or other of the events for which ss.16(2), (3) and (4) provide. In terms, the sub-section 15 not otherwise relevantly qualified. It does not require an inquiry to be made why the circumstances upon which the Operation of the sub-section depends did not occur: tne provision comes into operation once the fact 15 estabiisheag. Nor do 85.16(2), (3) and (4), in terms, impose a time limitation within which the events referred to must cccur Indeed, 1t would be surprising 1f they did having reaard to the infinite variety of circumstances in which tricse sub-sections will operate. 16. The circumstances in which 1 1s appropriate to imply words into a statutory provision have been the subject of much discussion in the cases. It as, we think, sufficient for present purposes to refer to what was said by Gibbs C.J. 1n Cooper Brookes (Wollongong) Pty. Ltd. v Federal Commissioner of Taxation (1981) 147 C.L.R. 297 ar pp.304-5: "Tt 1s an elementary and fundamental principle that the object of the court, in interpreting a statute, '1s to see what 1s the aintertion expressed by the words used': River Wear Commissioners v. Adamson (1877) 2 App. Cas. 743, at p.763. fit 1s only by considering tne meaning of the words used by the legisiature that the court can ascertain its intention. And it is not unduly pedantic to begin with the assumpticn tnat words mean what they = say: cf. Cody v. J.H. Nelson Pty. Ltd. (1947) 74 C.L.R. 629, at p.648. in isolation from its context - the whole must 2e considered. If, when the section in question 1s read as part of the whole instrument, its meaning is clear and unambiguous, generaily soeaking 'nothing remains but to give effect toa the unqualified, words': Metropolitan Gas Cs. v. Federated Gas Employees' Industrial inion (1925) 35 C.L.R. 449, at p.455.There are cases where the result of giving words their ordinary meaning may be so irrational that the court 15 forced to the conclusion that the draftsman has mace a mistake, and the canons of construction are not so rigid as to prevent a realistic solution ain Such a case: see per Lord Reid in Cannaught Fur Trimmings Ltd. v. Cramas Properties Ltd. Ci9et] 2 W.L.R. 892, at p.899; C196537 2 All E.R. 387, az p.386. Examples of that sort ot case may ne found in Maxwell oon the Interpretation of Statutes, 12th ed., (1969), at p.228 ek seq., and Craies om Statute Law, 7th ed., (1971), act p.520 et seq. However, 1f the lanquave or a statvutory provision 1s clear and unambiguous, and is consistent and harmonious with che other provisions of the enactment, and can ne intelligibly applied to the subject matter with which it deais, 1t must be jiven its ord:rary and qrammatical meaning, even if 1t leads t3 a cacult that may seem inconvenient or un7lust. Yo say "nis 1s not ta insist n too Literai an t 69 interpretation, or to ceny Enat the court sneuii 17. seek the real intention of the legislature. The danger that lies in departing from the ordinary meaning of unambiguous provisions 1s that '1t may degrade into mere judicial criticism of the propriety of the acts of the Legislature', as Lord Moulton said in Vacher & Sons Ltd. v. London Society of Compositors Ci913] A.C. 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, aif two constructions are open, the court will obviously prefer that which will avoid what 1t 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." In our opinion, applying these principles, the submissions put on behalf of the applicant cannot 5e accepted. It may well be postulated that, as a matter aif due administration, the duty imposed on the Commissioner by S.16(4) should be carried out 3S soon as it corvenient.y may be after a person becomes an el:gible empioyee. Sut, tc say that 1s to give no support to the proposition that tnere should be implied into the sub-section a time limit which the Parliament has not seen fit by express language to impose. The sub-section, on its face, may have an operation at any time before the eligible employee ceases to be such. That 15 the temporal context in which the provision operates and there 1s no warrant for confining 1ts operation within narrower limits. Support for the conclusion ¢9 which we have core 2s, we thank, also to be gained from a considerat:isn of the legislative purpose in enacting s.16 of the Act. it a eem ui th Q clear chat the purpose was toa provide some protection the superannuation scheme estanlished by the Act aca: i] ie) fa 18. claims due to the premature invalidity or death of an eligible employee who, at the time when he became an eligible employee, was suffering from a potentially disabling or fatal physical or mental condition which, in the event, results in his early retirement or death. We say some protection because the protection afforded to the scheme is not absolute. Thus, a benefit classification certificate ceases to have any effect at all after the eligible employee has completed twenty years' contributory service (s.16(5)) and has a diminishing effect in the event of death or retirement on the ground of invalidity where the period of contributory service 1s not less than eiyht years (ss.66 and 81). But the existence of the purpose of providing limited protection to the scheme militates, in our view, against the construction of the various sub-soctiens of s.16 put forward on behalf of the applicansc. It follows from what we have said that we dao rat embrace the construction of the provisions put 'forward by the applicant nor, indeed, that adopted by the Administrative Appeals Tribunal. An alternative argument was put cn behalf of the applicant that the Commissioner was estopped by the lapse of time from issuing the benefit classification certificate in respect of Mr Neal. That argument has no foundatior ané must be rejected. 19. In our opinion, for the reasons set out above, the application should be dismissed with costs. I certify that this and the preceding 18 pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice tox and the Honourable Mr Justice, Neaye IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. ACT G51 of 1986 ) ) ) ) DISTRICT REGISTRY GENERAL DIVISION ) ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: JANICE BEVERLY NEAL Applicant COMMISSIONER FOR SUPERANNUATION Zz iv] Respondent CORAM: Fox, Neaves and Beaumont JJ. DATED: 4 June 1987 REASONS FOR JUDGMENT BEAUMONT J. Section 16 of the Superannuation Act 1976 ("the Act") gave the Commissioner for Superannuation certain powers and imposed upon him certain duties. He was empowered to require an eligible employee to submit to a medical examination (s.16(2)). He was obliged to consider the report of that examination and, if of the prescribed opinion, he was obliged to issue a benefit classification certificate (s.16(4)). No time limit was specified in the Act for the performance of these functions. However, the usual implication of a reasonable time should be made as part of the ordinary process of statutory construction (see Re Federal Commissioner of Taxation; Ex parte Australena Investments Pty. Ltd. (1983) 50 A.L.R. 577 per Murphy J. at 2. p.578; Koon Wing Lau v. Calwell (1949) 80 C.L.R. 534 per Dixon J. at pp.573-4; Wade, Administrative Law, 5th ed. at p.634; Bennion Statutory Interpretation at p.416; p.785). What is the measure of a reasonable time is a question of fact to be determined in the light of all the circumstances (see Giris Pty. Ltd. v. Federal Commissioner of Taxation (1969) 119 C.L.R. 365 per Windeyer J. at pp.383-4). The deceased was medically examined on 7 December 1981. A migraine condition was noted. At the time of his death from heart failure two years later, on 16 December 1983, no attempt had been made by the Commissioner to turn his mind to the question whether a certificate under s.16(4) should issue. The deceased would have been justified in making the assumption that the Commissioner did not propose to issue any certificate. In the intervening period of two years, the deceased was obliged to contribute to the statutory superannuation fund but in return acquired rights akin to property rights (see Greville v. Williams (1905) 4 C.L.R. 694 per Griffith C.J. at p.703; Pearce, Statutory Interpretation in Australia, 2nd ed. at p.87). On 21 December 1983, the Commissioner's delegate entered upon a consideration of the medical reports furnished to the Commissioner two years earlier. The two year delay in dealing with the medical reports occurred because of lack of staff. On 21 December 1983, relying on the medical reports but in ignorance of Mr. Neal's death, the delegate decided that he should issue a benefits classifiction certificate specifying "migraine". In fact, the certificate was not issued because, in the meantime, it 3. was found that Mr. Neal had died. On 30 May 1984, the Commissioner issued a certificate specifying, in addition to migraine, the condition "history of anterior myocardial infarction". On the same day, the Commissioner decided, pursuant to s.8l1 of the Act, that the heart condition specified in the certificate caused or substantially contributed to his death. It is common ground that the infarction was in no way related to his migraine. (At the time of his medical examination in December 1981, Mr. Neal was not aware that he was, in fact, suffering from serious heart disease. It appears that in 1973, he was diagnosed as suffering from pericarditis (inflammation of the membranous sac enclosing the heart). In October 1983, Mr. Neal suffered an infarction. Apparently, he was then informed that the previous diagnosis of pericarditis was incorrect and that he had, in fact, suffered a coronary episode in 1973. A question could arise whether Mr. Neal gave the doctors full and truthful answers (see Davis "The Law of Superannuation in Australia" at p.256). This question does not arise in this appeal). On behalf of the Commissioner it is said that despite the fact that the power to issue a certificate under s.16(4) no longer existed, nonetheless the extraordinary powers conferred by s.16(10) were available to him in the present case. His contention is that s.16(10) should be read literally. Its provisions apply, the argument runs, in any case where an employee dies or retires for invalidity after undergoing a medical examination but before the Commissioner has in fact 4. considered the report of the results of the examination. It is said that the power to issue a certificate under s.16 1s available whatever the delay, unreasonable or reasonable, in considering those results - even if as long as 19 years has elapsed. I cannot accept the construction of s.16(10) contended for by the Commissioner. In my opinion, s.16(10) should be construed as capable of application where, by reason of the employee's death or retirement for invalidity, the process of implementing the procedures contemplated by s.16(2), (3) and (4) is interrupted but not otherwise. There was no such interruption here. On the contrary, because of the inability of the Commissioner to proceed under s.16(4) without unreasonable delay, the matter had become stale. Since this was not a case of the interruption of current processes of the kind envisaged by s.16(10), the Commissioner lacked the power to issue a certificate in May 1984. It is hardly necessary to add that the Commissioner also had no duty to do so. It cannot be assumed that the legislature intended that in the performance of his functions under s.16, the Commissioner could put the file aside for as long as his lack of resources compelled him to do so (in this case, and in Miller's Case (1985) 63 A.L.R. 237 at p.245, more than two years) and, upon discovery of the employee's death, seek to invoke the restrictive provisions of s.16(10). Parliament may be presumed to have intended that a coercive power such as the power to issue a benefit classification certificate would be exercised promptly if 5. at all (see Bennion, op.cit., at p.785). It is difficult to imagine that Parliament intended that the Commissioner could make a policy decision which had the effect that the results of the medical examination would not be considered for years and, if death or retirement occurred in the meantime, the Commissioner could use the retrospective powers conferred by s.16(10). On the contrary, it may be presumed that the legislature intended that s.16(10) operate in the special, limited circumstances already mentioned, that is to say, where the procedures under s.16(2), (3) and (4) which are in the course of implementation are interrupted by the supervening event of death or retirement. Here, at the time the deceased died, these processes were not current. They had been arrested by virtue of a deliberate decision of the Commissioner not to embark at that stage upon them. To all outward appearances at least, they had been abandoned. In my view, it should be presumed that Parliament intended that the Act be administered not only without unreasonable delay but also fairly, without discrimination and not arbitrarily (see Cooper Brookes (Wollongong) Pty. Ltd. Ve Federal Commissioner of Taxation (1980) 147 C.L.R. 297, per Mason and Wilson JJ. at pp.320-321; In re Preston [1985] 1 A.C. 835 at pp-.852, 865, 867; Clive Lewis, Fairness, Legitimate Expectations and _Estoppel (1986) M.L.R. 251 at p.253; De Smith's Judicial Review of Administrative Action 4th ed. at p.346). The approach to the construction of s.16 for which the applicant contends accords with the decision of the New South 6. Wales Court of Appeal dealing with a similar problem arising under the New South Wales legislation in Athanasiou v. State Superannuation Board, unreported, 21 June 1985. See also Davis op.cit. at pp.263-4. I would allow the appeal and order that the decision to issue the certificate be set aside. I certify that this and the preceding fjyg (Ss) pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Beaumont. Pett? HH Jelinsa~ Associate Dated: 4 June 1987 Counsel for the Applicant: Mr T Higgins Q.C. wath Ms J Rees Solicitor for the Applicant: Pamela Coward § Associates Counsel for the Respondent: Mrs P Flemming Q.C. with Mrs J Bonsey Solicitor for the Respondent: Australian Government Solicitor Dates of Hearing: 25, 26 March 1987 Date Judgment delivered: 4 June 1987