Commonwealth v Butler [1958] HCA 56

High Court of Australia Dixon C.J. Fullagar, Kitto, Taylor and Windeyer JJ. Commonwealth v Butler [1958] HCA 56

ORDER Appeal allowed. Pursuant to the agreement of the the appellant Commonwealth order that the said appellant pay the respondent's costs of this appeal. Discharge the order of the Judge of the County Court. In lieu thereof order that the respondent's appeal to the County Court be dismissed with costs to be taxed on the appropriate scale of the County Court.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 12 Dixon C.J.

In my opinion this appeal should be allowed. I have had an opportunity of reading the reasons prepared respectively by Fullagar J., Taylor J., and Windeyer, J., and I have nothing to add to them. They cover the case completely.

Fullagar J.

This is an appeal from a decision of Judge Moore, sitting as a Judge of County Courts at Melbourne. He had before him a claim by Elvee Margaret Butler, the widow of Kenneth Kendall Butler deceased, for compensation under the Commonwealth Employees' Compensation Act 1930-1956. The matter came before his Honour by way of appeal under s. 20 of the Act from a decision of the Commissioner for Employees' Compensation. His Honour made an award in favour of the claimant and her infant daughter, and the Commonwealth appeals to this Court. His Honour was exercising federal jurisdiction, and the appeal lies by virtue of s. 39 (2) (b) of the Judiciary Act 1903-1955 Cth and s. 74 of the County Court Act 1928 Vict.: see The Commonwealth v. Anderson [6] ; Goward v. The Commonwealth [7] .

1. (1957) 97 C.L.R. 345. 2. (1957) 97 C.L.R. 355.

The only relevant provisions of the Commonwealth Employees' Compensation Act are contained in s. 9 (1) and the first schedule. Section 9 (1) provides: "If personal injury by accident arising out of or in the course of his employment by the Commonwealth is caused to an employee, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with the first schedule to this Act." Clause (1) of the first schedule provides for the amount or rate of compensation to be paid (a) "where the death of the employee results from the injury", and (b) where the employee is totally or partially incapacitated for work by the injury.