"JUDGMENT No, 47%) staveesoued_epoenteverreaseteg CATCHWORDS ADMINISTRATIVE LAW - Judicial Review - appeal from order of trial judge - review of determination of delegate of Commissioner made under Compensation (Commonwealth Government Employees) Act - operation of s.30 of the Act and of item 4 in First Schedule in Regulations - whether "the disease 1s a disease of a kind specified in the regulations as a disease that is related to employment of a kind so specified" ~ "of a kind" - whether disease itself must be caused by exposure to radiation. PRACTICE AND PROCEDURE - principles of interpretation in relation to beneficial legislation not applicable in absence of ambiguity. Administrative Decisions (Judicial Review) Act 1977 Compensation (Commonwealth Government Employees) Act 1971 88.29, 30. Compensation (Commonwealth Government Employees) Regulations, reg. 12, item 4 in First Schedule. THE COMMONWEALTH OF AUSTRALIA V. F.R. SPAUL (A DELEGATE OF THE COMMISSIONER FOR EMPLOYEES' COMPENSATION) AND COLIN IRVINE BIRD NO. G97 of 1987 Davies, Lockhart and Neaves JJ. 11 September 1987 Sydney IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION CORAM: DATE: PLACE: No. G97 of 1987 ON_APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN : THE COMMONWEALTH OF AUSTRALIA Appellant AND: F.R. SPAUL (A DELEGATE OF THE COMMISSIONER FOR EMPLOYEES' COMPENSATION) OO . First Respondent AND: COLIN IRVINE BIRD Second Respondent Davies, Lockhart and Neaves JJ. 11 September 1987 Sydney MINUTE OF ORDER THE COURT ORDERS THAT: Note: The appeal be allowed. The order of the trial judge be set aside and there be substituted therefor an order that the determination of the delegate of the Commissioner for Employees' Compensation made on 14 November 1986 be set aside and the matter remitted to the Commissioner for Employees' Compensation for reconsideration according to law. There be no order as to costs of the appeal. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. pre tt ee T aM Bo ae re ne eng eer + mae eps core IN THE FEDERAL COURT OF AUSTRALIA ) ) QUEENSLAND DISTRICT REGISTRY ) No. G97 of 1987 ' ) ) GENERAL DIVISION ON APPEAL FROM A SINGLE JUDGE OF THE ' FEDERAL COURT OF AUSTRALIA : BETWEEN: THE COMMONWEALTH OF AUSTRALIA i. Appellant . \° AND: F.R. SPAUL (A DELEGATE OF THE it COMMISSIONER FOR EMPLOYEES' ' COMPENSATION ) First Respondent AND: COLIN IRVINE BIRD \ Second Respondent "2, CORAM: Davies, Lockhart and Neaves JJ. DATE: 11 September 1987 be PLACE: Sydney REASONS FOR JUDGMENT THE COURT: This is an appeal from a judgment of a single judge of this o Court in proceedings brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) seeking the review of a ; determination of a delegate of the Commissioner for Employees' Compensation. :, -2- The delegate had considered a claim made by the second respondent, Mr C.I. Bird, for compensation for carcinoma of the tongue and its effects. The claim had relied upon the fact that Mr Bird, when a member of the Royal Australian Air Force, had for a period of seven days fitted and removed canisters from aircraft which had collected radioactive air and dust samples after the Hurricane nuclear test which took place on 3 October 1952. Mr Bird subsequently serviced the aircraft at a time when they were contaminated and took part in their cleansing. Material before the delegate would have enabled the delegate to find that the minor exposure to ionising radiation which Mr Bird suffered in the course of these activities was not a probable, but could have been a possible, cause of or a contributing factor to Mr Bird's disease. The delegate did not expressly make that finding but that was the highest at which the factual case for Mr Bird could have been put. We need not set out the well known provisions of s.29 of the Compensation (Commonwealth Government Employees) Act 1971 which, read with s. 27, enable an employee to claim compensation if the employment of the employee by the Commonwealth was a contributing factor to the contraction of the disease from which he suffers or to its aggravation, acceleration or recurrence. The decision in this case turns upon the provisions of s.30 of the Act which provide:- "Without limiting by implication the operation of section 29, where - (a) an employee has suffered or is suffering from a disease or the death of an employee results from a disease; " . "2 Be re ree er at cee -3- (b) the disease is a disease of a kind specified in the regulations as a disease that is related to employment of a kind so specified; and (c) the employee was, at any time before symptoms of the disease first became apparent, engaged by the Commonwealth in employment of that kind, . Ne ep ape then, for the purposes of this Act, unless the ' contrary is established, the employment in which vs the employee was so engaged by the Commonwealth L shall be deemed to have been a contributing factor 3 to his contraction of the disease." Pursuant to this provision, regulation 12 of the Compensation ' (Commonwealth Government Employees) Regulations provides:-— "Por the purposes of section 30 of the Act, a disease of a kind specified in the first column of the First Schedule to these Regulations is related to employment of a kind specified in the second column of that Schedule opposite to the reference to that disease in the first column." Salle eaten si tee fi pater 6 "ale aol The relevant item in the First Schedule is item 4 of a group of 25 items. We set out item 4 and certain other items:;:- DISEASES RELATED TO EMPLOYMENT " FIRST SCHEDULE Regulation 12 First Column Second Column ' : | Disease Employment : te ee ee ee ee ee ee ree ; 2. Ankylostomiasis Employment in or about a tr mine ' 4. Pathological condition Employment involving 7 caused by - exposure to or contact .* (a) radium or another with radium, other radio- te radioactive substance; active substances or or x-rays (b) x-rays 5. Pneumoconiosis Employment involving inhalation of matter capable of causing pneumoconiosis 11. Poisoning by carbon Employment involving bisulphide exposure to or contact with carbon bisulphide 24. Primary epitheliomatous Employment involving cancer of the skin exposure to or contact with tar, pitch, bitumen, mineral oil, paraffin or a compound, product, or residue of any of those substances" The delegate considered that Mr Bird suffered a "Pathological condition caused by ... another radioactive substance" as specified in item 4 in that he suffered from a disease which could be caused by radiation. His express finding wassin- "Tt was concluded that the condition suffered by Mr. Bird was a condition of a kind caused by exposure to radiation and to that extent section 30 was satisfied." The learned trial Judge took the same view. His Honour said:- "The relevant question is 'Is the pathological condition from which Mr. Bird suffers a kind of pathological condition that is caused by radium, another radioactive substance, or x-rays?'" PrN eT Gn momo we o The reason advanced by the trial Judge for this view was:- "In my opinion, the answer to the present question is to be found in the words of s.30(b), that the disease be a disease 'of a kind' specified in the regulations. The words 'of a kind have a purpose to serve. The contention of the Commonwealth is that it is necessary that the cancer be caused by exposure to radiation and s.30 would, on that being done, supply the required linking between the exposure to radiation which caused the cancer and or , Srna eee oye -5- the exposure to radiation in the course of Mr. Bird's employment with the Commonwealth. On that argument, it seems to me that the disease suffered by Mr. Bird would he 'a disease specified in the first column of the First Schedule', and the words 'of a kind' would be otiose." The trial Judge thus accepted the contention of counsel for Mr Bird that item 4 "does not import a requirement that it he proved that the cancer from which Mr. Bird suffers was caused by exposure to radiation in the sense of proving that exposure to radiation was a contributing factor to his contraction of that disease". Notwithstanding the persuasive points made by the trial Judge in his reasons for decision we are unable to accept the construction which he and the delegate adopted. The word "kind" is appropriately used to denote a genus, class or description. When s.30 of the Act refers to the employee's disease, it uses the words "a disease" and "the disease". When it requires that that disease be a disease of a genus, class or description specified in the Regulations as a disease that is related to employment of a genus, class or description also specified therein, it uses the term "of a kind". Regulation 12 gives effect to this provision. The operation of s. 30 depends on the disease being a disease of a kind specified in the Regulations. It is impermissible to construe the words "of a kind" as negating cause. In the First Schedule Ankylostomiasis and Pneumoconiosis are diseases specified by name. Primary epitheliomatous cancer of the skin is given its technical description rather than name. q Ue eee \ sewer a ieee oe ~6- Most items are items of poisoning by a specified cause. Item 4 refers to a pathological condition having the cause which it specifies. Each item in the First Schedule thus describes a disease by name, technical description or cause. Item 4 is not differentiated in this respect from the other items in the first column of the First Schedule. In our opinion, s.30 does not operate unless the facts show that the disease suffered by the employee is a disease of the genus, class or description specified in the first column of the Pirst Schedule. That is to say, in respect of a named disease such as Ankylostomiasis, that it is such a disease; in respect of poisoning by carbon bisulphide, that it is such a disease; and in respect of item 4, that the disease is a pathological condition caused by radium or another radioactive substance or x-rays. In our opinion, the approach taken by the delegate and by the learned trial judge imputes the words "of a kind" into item 4 in the first column of the First Schedule. They do not appear therein. Item 4 does not refer to a "Pathological condition of a kind caused by ... another radioactive substance". The genus, class or description specified is "Pathological condition caused by ... another radioactive substance". If there were any doubt it would be removed by item 5 which, in the second column, uses the words "matter capable of causing pneumoconiosis". Had item 4 intended to encompass pathological conditions capable of being caused by radioactive substances, the item would have said so. Saooraee The trial Judge properly said that:- "The Act is beneficial in purpose and is therefore to be construed as amply as the provisions will properly permit." and submissions to the same effect were put on the hearing of the appeal by counsel for Mr Bird. However, there is no room for the application of any such principle of interpretation when the words of a statute have a plain meaning according to ordinary and natural usage. Item 4 has a plain meaning. It is unnecessary to consider the other grounds raised in the appeal. For these reasons, the appeal should be allowed and the order of the trial Judge should be set aside. There should be substituted therefor an order that the determination of the delegate made on 14 November 1986 be set aside and the matter remitted to the Commissioner for Employees' Compensation for reconsideration according to law. The appellant did not seek an order for its costs of the appeal and, in consequence, we make no order. I certify that this and the preceding six (6) pages are a true copy of the reasons for judgment herein of the Court. Associate "I- C-2xtde, Dated: 11 September 1987 Counsel and solicitors for the Appellant: Counsel and solicitors for the Second Respondent: Date of Hearing: Date of Judgment: Mr. G. Davies Q.C. with Mr. J. Logan instructed by the Australian Government Solicitor Mr. R. Cooper Q.C. with Mr. W. McMillan instructed by Hawthorn, Cuppaidge & Badgery 3 August 1987 11 September 1987 % tReet ae eorre epee . . . '