Industrial Court New South Wales Medium Neutral Citation: Chapman-Davis v State of New South Wales [2015] NSWIC 10 Hearing dates: 4 March 2015 Decision date: 03 August 2015 Before: Walton J, President Decision: It is appropriate to exercise the discretion reposed in this Court pursuant to s 154 of the IR Act to make a declaratory order consistent with the second declaration. However, I will give an opportunity to the parties to consider the final form of that order to be made having regard to the terms of this judgment. In particular, there would appear to be no reason, in light of the issues raised in the proceedings, why the order should temporally extend beyond a specification of the date of injury of the applicant. The applicant is to file and serve draft orders reflecting the terms of this decision and, if appropriate, any related submissions (as to the form of the orders) within 14 days. The respondents shall have an opportunity to file any submissions in reply as to the form of the orders within 14 days of the service of those draft orders and any submissions relied upon by the applicant relating thereto. In accordance with the same timetable, the parties shall separately file and serve any application as to costs and submissions as to the same. Catchwords: APPLICATION FOR DECLARATORY RELIEF – declaratory relief pursuant to s 154 – statutory construction – construction of Item 25 in Pt 19H of Sch 6 of the Workers Compensation Act – workplace injury – exemption from amendment to workers compensation legislative scheme - entitlement to workers compensation – three declarations sought – discretionary considerations – first declaration sought lacks utility – third declaration sought not pressed - whether term 'paramedic' should be construed by reference to award classification or duties – meaning of 'operational duties' – secondment - applicant maintained appointment to her substantive position during secondment and at time of injury – applicant was classified as a 'paramedic' under the relevant award during secondment and at time of injury – applicant was performing duties in secondment distinct to those of an 'operational paramedic' – principles of statutory interpretation – whether it is permissible to have recourse to extrinsic material – Parliamentary debates – meaning of the provision is "ambiguous" so extrinsic material may be considered pursuant to s 34(1)(b)(i) of the Interpretation Act – comments made in Parliamentary debates merely confirm purpose apparent upon text of the Schedule - reliance placed by parties upon Stockwell and the AWU case – authorities distinguishable on facts, but may offer some guidance – ultimate issue was whether the applicant was a 'paramedic' within the meaning and for the purposes of the Schedule at the time of her injury by virtue of her continued employment in a position classified at that time as a paramedic under the award notwithstanding that, in her secondment to the role of Health Advisor, which she occupied at the time, she was not required to perform the duties of an operational paramedic as defined by the respondents – reference to dictionary meaning – limitations of recourse to dictionary definition in construction –– construction must begin with consideration of text – consideration of text requires it to be read in context – application of the noscitur a sociis principle – Schedule provides an exemption from the amendments to the workers compensation legislative scheme to nominated classes of emergency services worker – indefinite article 'a' conditions each word in the phrase – legislative intention for words to have the current ordinary and natural meaning – consistent with general intent of the legislative scheme - whether the word 'operational' should be read into the Schedule – conditions not satisfied, 'operational' cannot be read in - beneficial construction required – identification of purpose and mischief – purpose of Schedule may be identified by express statement, text and structure as well as extrinsic material - textual construction consistent with purpose and legislative intention - 'paramedic' denotes an employee who is classified as a paramedic under the award and, relatedly, appointed to a paramedic position by the Ambulance Service of NSW – the applicant was such an employee at the time of her injury – the exemption in the Schedule applies to the applicant – Court determined to make a declaratory order consistent with the terms of the second declaration sought – draft orders with submissions reflecting the decision to be filed and served – costs applications and submissions in support of the same to accompany submissions on draft orders. Legislation Cited: Crown Proceedings Act 1988 Fire Brigades Act 1989 Government Sector Employment Act 2013 Health Services Act 1997 Industrial Relations Act 1996 Interpretation Act 1987 Police Act 1990 Workers Compensation Act 1987 Workers Compensation Legislation Amendment Act 2012 Workplace Injury Management and Workers Compensation Act 1998 Cases Cited: A-G v Scott (1904) 20 TLR 630 Amaca Pty Ltd v Novek [2009] NSWCA 50 Ambulance Service of NSW v Health Services Union East [2014] NSWIRComm 4 Banque Commerciale SA en liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 Barrett v Thurling (1984) 2 NSWLR 683 Bird v Commonwealth [1988] HCA 23; (1988) 165 CLR 1 British Steel Corp v Cleveland Bridge and Engineering Co Ltd [1984] 1 All ER 504 Bull v Attorney-General (NSW) (1913) 17 CLR 370 Byrne v Australian Airlines Ltd; Frew v Australian Airlines Ltd (1995) 185 CLR 410 Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross (Matter No S417/2011) [2012] HCA 56; (2012) 248 CLR 378 Chau v Visy Board Pty Ltd [2012] NSWIRComm 101 Coleman v Power [2004] HCA 39; (2004) 209 ALR 182 Commissioner of Taxation v Unit Trend Services Pty Ltd [2013] HCA 16; (2013) 250 CLR 523 Construction, Forestry, Mining and Energy Union v Mammoet Aust Pty Ltd [2013] HCA 36; (2013) 248 CLR 619 Dare v Pulham (1982) 148 CLR 658 Director-General, Department of Health (NSW) v NSW Nurses' Association [2011] NSWIRComm 111 Eaton v Overland [2001] FCA 1834 Forster v Jododex Australia Pty Ltd (1972) 127 CLR 441 Guppy v Australian Postal Corporation [2013] FCA 489; (2013) 212 FCR 380 Harrison v Melhem (2008) 72 NSWLR 380 House of Pearce Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 IW Applicant v the City of Perth (1997) 191 CLR 1 Korczynski v Wes Loftus Pty Ltd (1985) 62 ALR 225 Lacey v Attorney-General (Qld) (2011) 242 CLR 573 Lansell House Pty Ltd v Commissioner of Taxation [2010] FCA 329 Lend Lease Real Estate Investments Ltd & Anor v GPT RE Ltd [2006] NSWCA 207 Lewis v Green [1905] 2 Ch 340 Mills v Meeking (1990) 169 CLR 214 Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642 NBN Co Limited v Pipe Networks Pty Limited [2015] NSWSC 475 Nilant v Macchia (2000) 104 FCR 238 Norrie v NSW Registrar of Births, Deaths and Marriages (2013) 84 NSWLR 697 NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1955-1956) 94 CLR 509 Odhams Press Ltd v London and Provincial Sporting News Agency (1929) Ltd [1936] Ch 357; [1936] 1 All ER 217 Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWIRComm 23; (2014) 87 NSWLR 41 R v Liverpool Justices (1883) 11 QBD 638 Re Pacific Coal Pty Ltd and Others; Ex Parte Construction, Forestry, Mining and Energy Union and Anor (2000) 203 CLR 346 Smart v Allen (1970) 91 WN (NSW) 241 State of New South Wales v Bishop [2014] NSWCA 354 State of New South Wales v Stockwell [2015] NSWWCCPD 9 Taylor v Owners – Strata Plan No 15564 [2014] HCA 9; (2014) 88 ALJR 473 The Australian Workers Union, New South Wales v Office of the Environment and Heritage [2012] NSWIRComm 133 The Dairy Farmers Co-operative Milk Company Ltd v Commonwealth (1946) 73 CLR 381 The Industrial Relations Secretary on behalf of Department of Justice (Corrective Services NSW) v Public Service Association and Professional Officers Association Amalgamated Union of New South Wales (on behalf of Darren Rudd) [2015] NSWIRComm 11 Ware v NSW Rural Fire Service [2014] NSWWCCPD 33 Wentworth Securities Ltd v Jones [1980] AC 74 Texts Cited: R W Burchfield, Fowler's Modern English Usage (3rd ed 1998, Oxford University Press) Macquarie Dictionary (6th ed 2013, Macmillan Publishing Group) Oxford English Dictionary (2nd ed 1989, Oxford University Press) The Chicago Manual of Style (15th ed 2003, The University of Chicago Press) W A Sabin, The Gregg Reference Manual: A Manual of Style, Grammar, Usage, and Formatting (10th ed 2004, McGraw-Hill) Category: Principal judgment Parties: Lorelle Chapman-Davis (Applicant) State of New South Wales (First Respondent) QBE Insurance (Australia) Limited, as an agent for NSW Self Insurance Corporation (Second Respondent) Representation: Counsel: T M Ower of counsel (Applicant) P Ginters of counsel (Respondents) Solicitors: Harris Wheeler Lawyers (Applicant) Moray & Agnew (Respondents) File Number(s): IRC 563 of 2014 Judgment 1. On 25 July 2011, during the course of her engagement with the Ambulance Service of NSW ('ASNSW'), Ms Lorelle Chapman-Davis ('the applicant') sustained an injury to her back for which she underwent spinal surgery in November 2011. 2. The applicant commenced full-time employment as an ambulance officer in September 2000. At that time, her employment was regulated by an award of the Industrial Relations Commission of New South Wales ('the Commission') known as the Operational Ambulance Officers (State) Award (published 10 July 1998 Vol 305 NSW IG at 905). By 2003, the applicant had progressed to the classification 'Ambulance Officer Grade 2' under that award, albeit on a part-time basis. 3. A new award bearing the same title was made on 2 October 2008 (published 26 June 2009 Vol 368 NSW IG 556) ('the 2008 Award'), by which the classification of the applicant was altered, effective 12 September 2008, from 'ambulance officer' to 'paramedic' (under the transitional provisions of that Award she was classified as a 'Paramedic Year 2'). On 24 December 2010, the 2008 Award was replaced by an award made by Staff J which also bore that title (published 11 February 2011 Vol 371 NSW IG 114) ('the Award'). 4. On 18 July 2011, the applicant commenced work within the ASNSW Health Access Coordination Unit (HAC) in a position described as 'Health Advisor'. Her engagement in that position was for a period of 12 months. In accordance with the letter of offer preceding that engagement, the applicant's conditions of employment as a Health Advisor were those embodied in the Award and she was to be remunerated at the rate of ".63 FTE Paramedic Specialist Year 1", the classification 'Paramedic Specialist Year 1' being a classification within the classification structure in the Award (by which rates of pay for employees were set). The applicant occupied the position of Health Advisor at the time of her injury. 5. In consequence of her injury, the applicant lodged a workers compensation claim with the relevant workers compensation insurer, QBE Insurance (Australia) Limited as an agent for NSW Self Insurance Corporation ('the second respondent'). Liability was accepted for the applicant's injury and she was paid workers compensation pursuant to the Workers Compensation Act 1987 (NSW) ('the WC Act'). 6. The WC Act was amended on 22 June 2012 by the Workers Compensation Legislation Amendment Act 2012 ('the Amendment Act'). The Amendment Act effected a number of changes to the workers compensation scheme with retrospective operation including, inter alia, the amount and duration of entitlements for some injured workers. 7. Importantly for the present proceedings, police officers, paramedics and firefighters were exempted from the application of the Amendment Act by Item 25 in Pt 19H of Sch 6 of the WC Act ('the Schedule'), which was inserted into that Act by Sch 12 of the Amendment Act (which was entitled "Amendments Relating to Savings and Transitional Provisions"). The Schedule was in the following terms: 25 Police officers, paramedics and firefighters The amendments made by the 2012 amending Act do not apply to or in respect of an injury received by a police officer, paramedic or firefighter (before or after the commencement of this clause), and the Workers Compensation Acts (and the regulations under those Acts) apply to and in respect of such an injury as if those amendments had not been enacted. 1. On 30 September 2013, the second respondent wrote to the applicant to inform her that, in consequence of the changes made by the Amendment Act, her ongoing entitlement to claim medical expenses would cease on 31 December 2013. 2. The letter was demonstrative of the second respondent's view that, as at the time of her injury, the applicant was not a 'paramedic' and was not, therefore, shielded from the operation of the Amendment Act by the Schedule. refinement of the Issues in the Proceedings and associated findings 1. By way of an amended application filed on 10 October 2014, the applicant sought declaratory relief from the Industrial Court of New South Wales pursuant to s 154 of the Industrial Relations Act 1996 (NSW) ('the IR Act'). By that application the following declarations were sought: 1. The applicant is a paramedic for the purposes of the Operational Ambulance Officers (State) Award effective 16 April 2012. The first respondent is the employer. 2. During July, 2011, including 25th July, 2011, the Applicant continued to be employed by the first respondent as a "paramedic", within the meaning, and for the purposes, of Clause 25 Part 19H of Schedule 6 of the Workers Compensation Act 1987. 3. The Second Respondent is the workers compensation insurer for the purposes of the Workers Compensation Act 1987. 1. I should pause, at this juncture, to make an observation with respect to the "first respondent" referred to in that application. 2. The application listed the first respondent as the ASNSW. According to s 67A of the Health Services Act 1997, the ASNSW "comprises those staff of the NSW Health Service who are employed primarily in connection with the provision of ambulance services under [Chapter 5A]". Section 115 of that Act provides that "the NSW Health Service consists of those persons who are employed under this Part by the Government of New South Wales in the service of the Crown" and s 116(1)(c) provides that the Government of New South Wales employs staff "to enable the Health Secretary to exercise his or her functions under Chapter 5A in relation to ambulance services". Thus, the applicant's employer is the Crown in right of New South Wales, rather than the ASNSW. 3. By s 116(3) of that Act, the Secretary of the Ministry of Health (referred to in that Act as the "Health Secretary") is empowered to exercise "the employer functions of the Government in relation to the staff employed in the NSW Health Service" on its behalf. Nevertheless, the applicant's employer remains the Crown in right of New South Wales: State of New South Wales v Bishop [2014] NSWCA 354 at [26]-[28]. 4. In proceedings of this kind, the Crown in right of New South Wales should be identified, pursuant to s 5(1) of the Crown Proceedings Act 1988 (NSW), as the State of New South Wales. In consequence, the legal entity that constitutes the correct first respondent is the 'State of New South Wales' ('the first respondent'): see State of New South Wales v Stockwell [2015] NSWWCCPD 9 at [4] ('Stockwell'). 5. All subsequent references to the first respondent should be read in conformity with the above discussion and the proceedings should be entitled accordingly. The first and second respondents will be referred to collectively as 'the respondents'. 6. Returning to the amended application, it should be noted that the first and third declaration sought therein reproduced an original application which was filed on 21 July 2014 (in which those paragraphs represented the only two declarations sought). It was readily apparent, therefore, that the amended application differed from the original application by the inclusion of the second declaration set out in [10] above. 7. That alteration occurred after concerns were raised by counsel for the respondents, Mr P Ginters, in a directions hearing on 26 September 2014. On that occasion, Mr Ginters noted, with respect to the original application: Given the nature of the orders that are sought, there is a question which we have not formed a final view on – as to firstly the jurisdiction of the Commission to make the declarations that are sought and, related to that, is the question of the practicality or utility of the declarations that are sought. 1. Mr Ginters stated, as to the first issue, that, whilst s 154 of the IR Act was "cast in broad terms", there was at least some debate as to whether "the Commission is seized of jurisdiction absent some underpinning dispute or proceeding before it". 2. As to the second issue, Mr Ginters expressed the view that "it doesn't necessarily follow as a matter of course" that a declaration that the applicant was a paramedic under the Award would resolve the dispute between the parties, that is, whether the applicant was a paramedic within the meaning and for the purposes of the Schedule. He suggested that a declaration to that effect is what ought to be sought by the applicant, "rather than doing it by stealth or alternative means". 3. The latter issues raised by the respondents were ultimately crystallised in their written submissions dated 18 December 2014. Those submissions reflected a letter the respondents wrote to the applicant on 7 October 2014 in relation to the original application (which was handed to the Court during a directions hearing on 9 October 2014 without objection). The letter included the following terms: 2. Without conceding the Industrial Court's jurisdiction in [the present proceedings] to make the declaration sought, my clients' position is as follows: 2.1 As to the first declaration sought: It is not contested that whilst performing work with the First Respondent in July 2011: 2.1.1 The applicant was paid at the pro-rata rate for a Paramedic Specialist Year 1 under the [Award]; 2.1.2 The applicant's conditions of employment were as embodied in the [Award]; 2.1.3 The applicant was employed by the Government of New South Wales in the service of the Crown within the First Respondent (Employer) (see sections 115(1), 116(1)(c), 67A(1) of the Health Services Act 1997). 2.2 My clients do not however concede that the applicant, whilst performing work with the First Respondent in July 2011, and especially on 25 July 2011, was a "paramedic" for the purposes of item 25 in Part 19H of Schedule 6 of the [WC Act]. 2.3 As to the second declaration sought: it is not contested that the Second Respondent is the employer's workers compensation insurer for the purposes of the [WC Act]. 2.4 Again, my clients do however contest that the applicant, whilst performing work with the First Respondent in July 2011, and especially on 25 July 2011, was a "paramedic" for the purposes of item 25 in Part 19H of Schedule 6 of the [WC Act]. 1. Given those concessions, the respondents contended that it would not be appropriate for the declarations sought by the applicant in the original application to be made, particularly since they would serve no practical utility (citing Forster v Jododex Australia Pty Ltd (1972) 127 CLR 441 at 437–438 per Gibbs J). That contention was maintained with respect to the first and third declarations in the amended application. 2. It will be seen from the above discussion that the respondents raised the prospect of a jurisdictional challenge with respect to the original application (although one was never pursued). However, after the filing of the amended application, no jurisdictional issues were raised by the respondents in these proceedings. 3. During the hearing, counsel for the applicant, Mr T M Ower, acknowledged that the issue for adjudication in the present proceedings was encapsulated in the second declaration sought by the applicant. Mr Ower abandoned the third declaration. (The identity of the relevant workers compensation insurer was never a point of conflict between the parties in the present proceedings.) Although Mr Ower did not entirely abandon the first declaration, he did not ultimately pursue it in argument. 4. Given the fact that the jurisdiction of the Court to make an order for declaratory relief is characterised by the exercise of a discretion in which considerations of the utility of the declaration are relevant (see Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWIRComm 23; (2014) 87 NSWLR 41 ('PSA v SoT') at [165] – [181] for a discussion of the relevant authorities), the decision of the applicant not to effectively pursue the first declaration was undoubtedly correct for a number of reasons. 5. One class of declaration in which relief is commonly refused upon the basis of that discretion is where the granting of the declaration would not settle the dispute between the parties. Thus, a construction point will not be decided unless the decision is reasonably likely to solve the question between the parties: Lewis v Green [1905] 2 Ch 340, Smart v Allen (1970) 91 WN (NSW) 241. The first declaration suffers from such difficulties and, in my view, could not contribute to the resolution of the instant matter. 6. The first declaration is expressed in terms referable to the date of a variation to the Award (16 April 2012). That variation occurred some nine months after the time of the applicant's injury. On that date the applicant was no longer performing the duties of a Health Advisor (and, in fact, may have already resumed work in a position classified as 'Paramedic Year 2'). 7. As such, even if the applicant was classified as a 'paramedic' under the Award in April 2012, that fact could not resolve the issues in these proceedings which, upon the applicant's own view, concern whether the applicant was a 'paramedic' at the time of her injury. That temporal confinement mirrors the terms of the WC Act which provides that the right of an injured worker to claim compensation under that Act vests at the time that the worker receives, or is deemed to have received, an injury (see, for example, s 9(1) of that Act). 8. Further, it was conceded by the respondents that the first respondent was the employer of the applicant at all material times. 9. Thus, the first declaration sought by the applicant serves no utility in the present proceedings as it does not temporally relate to the instant dispute. 10. There is a further dimension to the issues raised by the respondents as to the first order sought in the amended application. The respondents contended that a bare declaration as to the status of the applicant as a paramedic under the Award could not, in and of itself, bring the applicant within the scope of the Schedule, as the Schedule concerned the duties performed by an employee of the first respondent in the service of the ASNSW as at the time of their injury. In so doing, however, they did not concede that the applicant was, in fact, classified as a 'paramedic' under the Award at the time of her injury (although the respondents did concede that the applicant's conditions of employment were embodied in the Award). 11. Since the applicant did not formally withdraw the first declaration, it is appropriate that I state that the declaration is refused on discretionary grounds having regard to the limit of the applicant's submissions on the issue and a lack of utility. The granting of the first declaration in the amended application would plainly "be of little practical value" to the disposition of the proceedings: see A-G v Scott (1904) 20 TLR 630 at 633; Odhams Press Ltd v London and Provincial Sporting News Agency (1929) Ltd [1936] Ch 357; [1936] 1 All ER 217 and The Dairy Farmers Co-operative Milk Company Ltd v Commonwealth (1946) 73 CLR 381. 12. In the result, the issues for adjudication in the present proceedings are confined to those which arise in the second declaration sought in the amended application. That controversy was refined by the manner in which the parties framed their respective cases. 13. The applicant contended that she was a 'paramedic', within the meaning and for the purposes of the Schedule at the time of her injury by virtue of her classification as a 'paramedic' under the Award at that time. In Mr Ower's words, "if you are classified as a paramedic you really don't need to go any further". 14. That approach was evinced in the "Grounds and Reasons" that were set out in par E of the amended application: E. Grounds & Reasons 1. The Applicant was injured on 25 July 2011. 2. The Second Respondent has determined that the Applicant was not a Paramedic. 3. On 25 July 2011 the Applicant was employed as a Paramedic in accordance with the Award. 1. The applicant contended that the applicable definition for the term 'paramedic' under the WC Act was that set out in the Award. The applicant submitted that she was at all material times an employee who fell within the definition of 'paramedic' in the Award. That is, she had successfully completed the necessary and relevant training and work experience, as specified by the Award, to become a paramedic and was appointed to an approved paramedic position. 2. Upon the applicant's submissions, she satisfied that definition in consequence of the maintenance at the time of her injury of what may be described as, to use industrial parlance, her substantive position (her appointment to a position which was classified as a 'Paramedic Year 2' under the Award). The applicant's role as a Health Advisor was described as a "secondment" from that position, which did not terminate her 'paramedic' status. Indeed, the terms of her secondment were said to expressly confirm the continuation of that status. The applicant's contention, in that respect, was evident in the language of the second declaration where it was said that the applicant "continued to be employed by the first respondent as a 'paramedic'". 3. Mr Ower contended that, if an injured worker's employment is contracted upon the basis of being a paramedic, the employee must fall within the meaning of the term 'paramedic' in the Schedule regardless of whether they "are carrying out those core functions at the time or not". In that respect, it was submitted that the applicant's accreditation as a Health Advisor did not preclude her from being classified as a 'paramedic' under the Award and that she was, therefore, a 'paramedic' within the meaning and for the purposes of the Schedule at the time of her injury. 4. The applicant presented no other basis upon which she could fall within the meaning of 'paramedic' in the Schedule. 5. The applicant's case, in that respect, was predicated upon the following series of propositions: 1. The applicant was employed by the first respondent within the service of the ASNSW as a paramedic. 2. The position that she occupied satisfied the definition of 'paramedic' under the Award. As such, the applicant was classified as a 'paramedic' for the purposes of the Award. 3. By the operation of the Award, the terms and conditions which applied to a paramedic in that instrument were superimposed onto her contract of employment. 4. The applicant's contract of employment, and her consequential classification as a 'paramedic', represented her substantive position and subsisted during her secondment to the role of Health Advisor (regardless of the duties she performed in that role). 5. Thus, at the time of her injury, the applicant continued to be appointed by the ASNSW to a position which was classified as a 'paramedic' under the Award and to satisfy the definition of the same. 6. Accordingly, the applicant was a paramedic within the meaning and for the purposes of the Schedule at the time of her injury. 1. In that light, the second declaration sought by the applicant was, in effect, that, on 25 July 2011, the applicant "continued to be employed by the first respondent as a 'paramedic'" within the meaning and for the purposes of the Schedule by virtue of the continuation of her classification as a 'paramedic' under the Award (that is, the maintenance of her appointment to a position classified as a 'Paramedic Year 2' under that instrument). 2. It should be noted, in that respect, that the adjudication of the issues in the present proceedings must be undertaken by reference to the manner in which the parties framed their respective cases. That confinement is necessary because it prevents, inter alia, procedural unfairness to the opposing party who may otherwise not have the opportunity of knowing the case against them or be able to take steps to meet it: see, for example, Dare v Pulham (1982) 148 CLR 658 at 664 and Banque Commerciale SA en liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286-287 per Mason CJ and Gaudron J (although in those decisions the notion was discussed as it concerns the pleadings of the parties rather than their cases at large). As such, my consideration of the second declaration sought in the amended application will be constrained by the manner in which the applicant prosecuted her case and the reply articulated by the respondents (see [97] and [101] below). 3. The respondents agreed that the ultimate issue for adjudication in the present proceedings was whether the applicant was a 'paramedic' within the meaning and for the purposes of the Schedule at the time of her injury. However, they substantially diverged from the applicant in the manner by which they argued that question should be determined. 4. As mentioned earlier, the respondents submitted that the applicant's classification under the Award was not determinative of whether she was a 'paramedic' within the meaning and for the purposes of the Schedule. It was submitted that a construction of the term 'paramedic' based solely upon an injured worker's classification would "capture as a paramedic a range of people" that the legislature did not intend to protect from the effects of the Amendment Act (such as Educators and those working in the Performance Improvement Team or Professional Standards Unit). They submitted that the term 'paramedic' in the Schedule should be construed by reference to the duties performed by the subject employee at the time of their injury. 5. In the result, the respondents' contended that it did not matter that, at the time of her injury, the applicant: 1. Had a current clinical certificate to practice with the ASNSW; 2. Was paid at the pro rata rate for a 'Paramedic Specialist Year 1' under the Award and had her conditions of employment embodied in the Award; 3. Was employed by the New South Wales Government in the service of the Crown within the ASNSW; and 4. Continued to be entitled to the death and disability benefits applicable to paramedics whilst working as a Health Advisor due to the policy of ASNSW to classify secondees to non-front line duties as paramedics for the purposes of the Award. 1. By that submission, the respondents conceded that those factual conditions applied at the time of the applicant's injury. 2. The attention that the respondents fixed upon the 'duties' of paramedics, in this respect, requires further discussion by reference to two elements of their submissions. 3. First, in written submissions, the respondents contended that, in order to fall within the meaning of the word 'paramedic' in the Schedule, an employee must be relevantly qualified and included in "on-road rostering arrangements" or "performing 'in the field' paramedic/emergency response duties". The duties identified in the second part of their proposed definition were variously described by counsel for the respondents in oral argument as 'operational', 'front-line' or 'on-road' paramedic duties, but no further elaboration was provided by the respondents. The respondents' contended that the cluster of duties, so described, represented the duties of paramedics which were said to qualify the meaning of the word 'paramedic' in the Schedule. Paramedics performing that cluster of duties, as I have described it, were given a global title by the respondents, namely, 'operational paramedics'. 4. Secondly, whilst attended by some ambiguity, it would seem that the encompassment by the respondents of paramedics included in on-road rostering arrangements in the first part of the definition proposed expands the scope of the duties that the respondents contend govern access to the protections of the Schedule beyond paramedics performing emergency front-line duties to those rostered to but not performing such duties and paramedics undertaking non-emergency duties. This is best illustrated by referring to the evidence of the ordinary duties of a paramedic. 5. The applicant's letters of appointment as a part-time ambulance officer in 2002 and 2003 stated that the "conditions of duty" include, inter alia, "general ambulance duties". Although that phrase was not defined in the letters, it is apparent, upon the other evidence in these proceedings (in particular the position description of 'paramedic' issued by the ASNSW), that those duties comprise the following classes of work: 1. Out of hospital, first contact clinical emergency and non-emergency care; and 2. Medical retrieval and health related transport for sick and injured people in an emergency and non-emergency setting. 1. With the benefit of that outline, it would seem to follow that the respondents contemplated that the Schedule also applied to paramedics exercising duties in the following circumstances: 1. Paramedics who were performing non-emergency on-road duties at the time of injury. 2. Paramedics who were rostered to perform on-road work but were not actually discharging those functions at the time of an injury. 1. It follows that the respondents should be taken as incorporating within the meaning of paramedic for the purposes of the Schedule paramedics who are not actually performing on-road emergency or front-line duties (to employ some of the adjectival qualifications upon which the respondents relied) at the time of an injury or, indeed, on-road duties of a non-emergency nature (in the circumstances described in [50] above). That conclusion will have some significance for the questions of construction later considered, including the utilisation of the extrinsic material relied upon by the respondents, namely, the speech of Mr David Shoebridge MLC in Parliamentary debates. 2. For the remainder of this judgment, references to 'paramedic' or 'a paramedic' shall concern either the word used in the Schedule, the classification 'paramedic' defined in the Award or the position description or classification of paramedic given to the applicant by ASNSW. The expression 'operational paramedic' or 'operational paramedic duties' shall be employed as a shorthand means of describing the qualification vis-à-vis duties relied upon by the respondents in their contentions as to the second declaration. 3. Those submissions did not amount to a concession as such that the applicant was appointed to a position which was classified as a 'paramedic' under the Award at the time of her injury. 4. However, it may be readily concluded (as discussed immediately below) that the first five propositions outlined in [39] are correct having regard to the evidence in these proceedings. 5. The applicant brought evidence in the form of an affidavit she swore on 29 October 2014. The respondents cross-examined the applicant on her evidence and brought further evidence in the form of affidavits from Mr Noel Quinn, Senior Industrial Relations Specialist employed by the first respondent, and Mr Hendrik Kruit, Acting Senior Manager HACS (to which the position description of a paramedic earlier referred to was annexed) (sworn 17 December 2014 and 11 December 2014 respectively). That evidence comprised, inter alia, an examination of the terms and history of the Award which is apposite to the present discussion. 6. By way of introduction, in that respect, it may be noted that the Award has regulated the conditions of employment of employees of the first respondent since it was made by consent in 1998: Ambulance Service of NSW v Health Services Union East [2014] NSWIRComm 4 ('ASNSW v HSU') at [14]. 7. As noted above, at the time of the applicant's engagement with the ASNSW, the Operational Ambulance Officers (State) Award published in July 1998 regulated the terms and conditions of employment of ambulance officers (see cl 45(c)). That award provided a classification structure consisting of 'patient transport officers', 'ambulance operations centre officers', 'ambulance officers' and some senior positions. By cl 5 and Pt B (Table 1) of the award, there were established two grades within the classification 'ambulance officer' as well as definitions of the respective classifications by grade. 8. Those ambulance officer classifications were defined in cl 5 as follows: "Ambulance Officer - Grade 1" means an employee who, during his or her second third year of Service, is required to undertake and successfully complete the requirements for appointment as an Ambulance Officer Grade 2 during this period at a time determined by the Service. "Ambulance Officer - Grade 2" means an employee who has successfully completed the requirements as set out for Ambulance Officer Grade 1 and who is in his or her fourth or subsequent years of service and who is appointed to an Ambulance Officer position identified as such by the Service. 1. The applicant became classified as an 'Ambulance Officer – Grade 2' under that award. 2. A further award was made in 2005 by Boland J (published 16 June 2006 Vol 359 NSW IG at 948). It bore the same title and had the same classification structure as the predecessor award. 3. The 2008 Award rescinded and replaced that award and, as noted above, varied the classification structure therein. Clause 5 and Section 8 of the 2008 Award (described as "Monetary Rates" and resembling a 'Part') established the new classification structure, which replaced the existing 'ambulance officer' classification with 'paramedic' classifications at various levels (there was a separate classification structure for Ambulance Operations Centre Staff). 4. Section 9 of the 2008 Award provided for transitional arrangements into the new classification structure such that, for example, an existing 'Ambulance Officer Grade 2 Year 1-3' became a 'Paramedic Year 1' and an 'Ambulance Officer Grade 2 Year 4-7' became a 'Paramedic Year 2' under the Award. It follows that, by those transitional arrangements, the applicant's classification was altered from 'ambulance officer' to 'paramedic'. Given her standing as an 'Ambulance Officer – Grade 2', it may be inferred she transitioned to the classification 'Paramedic Year 2' from the date of the operation of the 2008 Award, namely, 12 September 2008. 5. The classification structure in the 2008 Award was retained in the Award. 6. Under the Award, 'employee' was defined as "an Officer and/or Operational Ambulance Officer of the Service who is employed pursuant to this Award". 'Officer and/or Operational Ambulance Officer' is defined as "an employee of the Service who is employed pursuant to this Award". 7. The Award regulated the conditions of those employees in accordance with particular classifications into which the subject employees were categorised. Clause 5 of the Award retained the title "Classifications". That clause continued to provide the definitions of each employment classification for which provision was made in 'Section 8: Monetary Rates' and, in particular, in Tables 1A and 1B by which the wages for each classification were set. Employees were appointed to positions which corresponded to classifications in the Award and were remunerated accordingly. 8. Clause 5(b)(Division 2), in conjunction with Section 8, provided for several classifications of paramedic, namely, Trainee Paramedic; Paramedic Intern; Paramedic; Paramedic Specialist and various senior positions. It may be noted that there is a separate classification for Patient Transport Officers which appears in cl 5(a)(Division 1). 9. I return, now, to consider each of the aforementioned contentions of the applicant as recorded in [39] above. (This discussion will also serve as an explanation for the observations made at the outset of this judgment.) In addressing those matters I shall deal cumulatively with the first to fourth contentions (save for the second part of the fourth contention dealing with the subsistence of the applicant's classification as a paramedic during the secondment, which I will address separately). 10. The first contention was not disputed by the respondents and was clear on the evidence in the proceedings. 11. The respondents conceded that the applicant performed the duties of a paramedic until her engagement as a Health Advisor. 12. The applicant was employed by the first respondent within the service of the ASNSW as an 'Ambulance Officer'. The applicant's original contract of employment was not in evidence in these proceedings, but two later letters of offer were annexed to the applicant's affidavit. The letters, dated 10 May 2002 and 27 November 2003, offered the applicant the positions of "Ambulance Officer Permanent Part-Time 24 Hours" and "Permanent Part-Time Ambulance Officer" (20 hours) respectively (corresponding to her reversion to part-time work). The latter correspondence stated that the applicant was to be remunerated at the salary prescribed for an 'Ambulance Officer Grade 2, Year 3' under the Award. 13. At the time of the applicant's employment with the first respondent, the nomenclature 'Ambulance Officer' was the descriptor for persons appointed to perform duties which involved, inter alia, emergency, out of hospital clinical care and ambulance services in accordance with the classification system fixed by the Award. As noted above, the nomenclature for such persons subsequently changed by virtue of the operation of the Award to that of 'paramedic' (with various classification levels therein). 14. The evidence does not make clear why that reform was undertaken or the effects thereof, but it is clear that the transitional arrangements under the Award had the effect of transferring all former ambulance officers, so described, into the new position of paramedic (albeit at various classification levels dictated by the transitional provisions within the Award) from September 2008. 15. The culmination of those factors result in the comfortable conclusion (based upon the ordinary established principles for the determination of whether a contract has come into existence) that there existed a contract of employment between the applicant and the first respondent, commencing in September 2000, by which the applicant was appointed as an ambulance officer in accordance with the requirements of the Award. The title of that position was varied by the operation of the Award in 2008 and the established nomenclature for ambulance officers became 'paramedic' thereafter. On the evidence in these proceedings, nothing arising from that change disturbed the contract of employment. If there were changes in the duties performed by the applicant, they were not disclosed on the evidence. Changes to the manner in which such emergency services personnel discharged their duties (or the skills they exercised) would not, in the ordinary course, have required or involved any change in their contract of employment, particularly if arising from award variations. In any event, no such variation was demonstrated in this case (or sought to be established by the respondents). 16. Thus, the applicant's contract of employment as a paramedic subsisted as at the time she took up her role as Health Advisor (and continued, as I will find in my discussion of the fourth contention, during that engagement). 17. I note, in passing, that where I refer to the principles relevant to the determination of whether a contract has come into existence I intend to refer to the "classical theory of contract based on offer and acceptance", which depends upon "a true construction of the relevant communications which have passed between the parties and the effect (if any) of their actions pursuant to those communications": Director-General, Department of Health (NSW) v NSW Nurses' Association [2011] NSWIRComm 111 at [95] - [97]; see, also, British Steel Corp v Cleveland Bridge and Engineering Co Ltd [1984] 1 All ER 504 at 509. 18. As to the second contention, by virtue of the insertion into the Award in 2008 of the paramedic classification and accompanying transitional arrangements alone, the applicant was a paramedic for the purposes of the Award. Further, the applicant was correct to submit that, as a result of her employment as an ambulance officer, and later as a paramedic, she satisfied the definition of 'paramedic' contained in the Award. 19. The expression 'paramedic' was defined in cl 5(b)(iii)(Division 2) of the Award in the following terms: Paramedic means an employee who has successfully completed the necessary and relevant training and work experience as determined by the Service to become a paramedic and who is appointed to an approved paramedic position. Provided that such an employee shall be required to undertake and successfully complete further instruction/in-service courses necessary for the maintenance of their clinical certificate to practice and the re-issue of their clinical certificate to practice every three (3) years. 1. That definition may be broken down into the following constituent elements: 1. An employee; 2. Who has successfully completed the necessary and relevant training and work experience as determined by the Service to become a paramedic; 3. Who is appointed to an approved paramedic position; and 4. Who undertook and successfully completed further instruction/in-service courses necessary for the maintenance of their clinical certificate to practice and the re-issue of their clinical certificate to practice every three (3) years. 1. I have found above that the applicant was at all material times "an employee" of the first respondent within the service of ASNSW. 2. The meaning of the expression "approved paramedic position" was not the subject of submissions and may seem slightly opaque. However, when considered with the other elements of the definition and the classification scheme fixed by the Award, its meaning is readily ascertainable. The Award prescribed the classification structure for employment with the ASNSW such that employment with the first respondent within the service of the ASNSW falling within the scope of the Award must conform with that classification structure. To that extent, the Award dictates appointments which may be made by the employer as it governs the designations which may be given to employees within the service of the ASNSW and their rates of pay and conditions. However, the definition recognises that the requirement and the terms of training and experience for paramedics is the province of the ASNSW. So, too, is the determination of whether a position will be required (the establishment of various paramedic positions) and filled within the service. Hence, the notion of "approved paramedic position". 3. In the result, the definition under the Award (in conjunction with its substantive provisions) operates coextensively with the first respondent employing a paramedic in the service of ASNSW by governing the classification of an employee as a paramedic (both in a general sense and by classification level) and the nature and terms of that employee's engagement. 4. Having regard to that analysis, the inescapable conclusion on the evidence in the proceedings is that the applicant was appointed to an approved paramedic position as she was employed in a position classified under the Award (respectively as an ambulance officer and paramedic) which was established by the ASNSW (it may be assumed, regularly, in the absence of contrary evidence) and treated by ASNSW in all respects as a paramedic position (circumstances which, as I will discuss, prevailed during the applicant's engagement as a Health Advisor and at the time of her injury). 5. The remaining elements of the definition in the Award represent the counterparts to the abovementioned concessions of the respondents and are supported by the evidence in these proceedings. It is apparent, therefore, that the applicant satisfied each element of the definition of 'a paramedic' under the Award and was, therefore, a paramedic for the purposes of that instrument. 6. As such, the applicant was classified as a 'paramedic' for the purposes of the Award and held that position and classification at the time of her engagement as a Health Advisor. To use industrial parlance, that represented her substantive position under her contract of employment at the time of her engagement (which corresponded with her classification under the Award). As conceded by the respondents, the conditions of her employment, including her remuneration, comprised those established in the Award for that classification. 7. The Award, therefore, applied to the applicant and, as a matter of law, prescribed, by its terms, the conditions of her employment by superimposing the subject conditions over her contract of employment (see Byrne v Australian Airlines Ltd; Frew v Australian Airlines Ltd (1995) 185 CLR 410 at 420 ('Byrne'); see, also, Re Pacific Coal Pty Ltd and Others; Ex Parte Construction, Forestry, Mining and Energy Union and Anor (2000) 203 CLR 346 at [120], per McHugh J ('Pacific Coal') and s 12 and Pt 2 of Ch 7 of the IR Act). As the obligation to observe the provisions of the Award arises by "force of statute", rather than incorporation into the contract (see Pacific Coal at [215] per Gummow and Hayne JJ), those obligations must endure so long as the application is retained in her appointment as a paramedic. The applicant was correct in her third contention. 8. The second issue raised by the fourth contention is essentially whether the applicant maintained her employment as a paramedic during her service as a Health Advisor and, in particular, at the time of her injury, notwithstanding the fact that, as I will later find, the duties of a Health Advisor are different to those of a paramedic performing operational duties. 9. The respondents did not concede, as such, that the applicant's substantive appointment remained that of a paramedic at the time of her appointment as a Health Advisor, but there are a number of indicators which, in addition to my discussion of the operation of the Award, would confirm that, as I have noted above, an affirmative answer should be given to the applicant's fourth contention. 10. That affirmative answer is based upon the following factors: 1. As accepted by both parties, the applicant assumed the role of Health Advisor as a secondment. No suggestion was made that the role, in that respect, departed from the broadly understood meaning of that expression as a temporary transfer to another post or responsibility during which period the terms on which the employees' substantive employment as contracted are maintained (see the discussion by Allsop J in Eaton v Overland [2001] FCA 1834 at [190]-[191]). In any event, the evidence confirmed that the arrangement by which the applicant undertook the role of Health Advisor conformed with that description. The applicant's engagement was only for a temporary period under a secondment to the role of Health Advisor with the ASNSW (upon her evidence, which I accept, that role was to continue for a period of 12 months). The evidence of Mr Kruit revealed that the applicant would maintain her clinical certificate to practice during that period "as the paramedic could revert back to operational paramedic work at the conclusion of their secondment" (that is, return to front-line duties). In the case of the applicant, she deposed her intention to undertake part-time operational paramedic duties whilst engaged as a Health Advisor. 2. In accordance with the established practice of the ASNSW, where paramedics temporarily undertook non-operational duties they continued their appointment and classification as paramedics so as to retain that status under the Award. In other words, the Award continued to operate upon her employment in a way referable to her position as a paramedic. Mr Kruit deposed that the purpose of this practice was both to ensure that the employee would continue to receive death and disability benefits pursuant to the Ambulance Service of NSW Death and Disability (State) Award and could revert back to operational duties at the completion of their secondment. Mr Quinn confirmed that one reason paramedics continued to be engaged under the Award was in order to "protect their entitlements to Death and Disability coverage" (those paragraphs of his affidavit were provisionally allowed, but should be admitted as relevant in this context). It may be noted, in this respect, that the applicant's death and disability payments continued to be deducted from her pay whilst she was engaged as a Health Advisor and maintained her classification as a 'paramedic'. 3. The applicant was remunerated at the rate provided for a 'Paramedic Specialist Year 1' under the Award on a pro rata basis. Whilst that arrangement may, in some circumstances, simply reflect an administrative convenience (whereby a rate for a position is derived from a comparable position), it appears that, in the aforementioned circumstances of the present case, the applicant was paid on that basis in consequence of the maintenance of the appointment to her substantive position. 4. Further, there was no suggestion in the applicant's letter of offer of engagement as a Health Advisor that undertaking that role would terminate her existing employment (and appointment) or preclude the continuation of her classification as a 'paramedic' under the Award. Nor was there a suggestion that a new or fresh appointment was being made by the first respondent. In any event, s 73(1)(b) of the Government Sector Employment Act 2013 ('the GSE Act') provides that an appointment to a position in the government sector, which includes the NSW Health Service (see s 3 of the GSE Act), will not be surrendered or vacated as a result of appointment to an additional position such that the appointment to the original position will be maintained in spite of a subsequent appointment to an additional position. 5. It was apparent, upon that evidence, that when workers whose employment was contracted as a paramedic were seconded to other duties, the ASNSW maintained their substantive paramedic positions for the reasons described above (regardless of the duties they were seconded to perform). 1. Hence, the applicant was correct to submit that her contract of employment, under which she was appointed to a position classified as a 'paramedic' caught by the Award, subsisted during the period that she was engaged as a Health Advisor. 2. I then turn to the fifth contention. 3. The applicant's continued employment as a paramedic (and the maintenance of such a position by the ASNSW during her secondment) meant that the Award could not be contracted out of, save for by providing superior benefits to the applicant, and the first respondent was thereby required to maintain her substantive classification as a 'paramedic' by the Award (see Byrne at 421 and Construction, Forestry, Mining and Energy Union v Mammoet Aust Pty Ltd [2013] HCA 36; (2013) 248 CLR 619 at [66]). 4. That conclusion is derived from the fact that the maintenance of the applicant's appointment to a position which corresponded with the definition of 'paramedic' and 'paramedic' classifications in the Award necessarily activated the Award such that it operated to govern the terms and conditions of that appointment. The fact that the applicant may not have been discharging some or all of the functions associated with that position does not displace that conclusion as it is the appointment, not the discharge of particular duties, against which the Award definition and 'Area, Incidence and Duration' clause (cl 47(b)) operated. 5. That requirement is confirmed by the language of the IR Act. Section 12(1) of that Act provides that "an award is binding on all employees and employers to which it relates, whether or not they were a party to the making of the award". As with its predecessors, the IR Act does not make the statutory rate of wages part of the contract of employment, but rather creates distinct remedies for failure to comply with the obligations arising from an award (see Byrne at 456). In particular, in Pt 2 of Ch 7 of the IR Act, s 365 provides that "an industrial court may, on application, order an employer to pay any amount payable under an industrial instrument that remains unpaid to the person to whom it is payable". Section 366 provides that, in circumstances where there is an industrial instrument that fixes the minimum rate or amount of remuneration for work done under the contract, "an industrial court may, on application, order an employer to pay any amount payable to a person under a contract relating to the employment of the person that remains unpaid". 6. It follows that the fifth proposition is also made out (as there had been no departure from her status as a 'paramedic' at the time of her injury). 7. Thus, in my view, and in conformity with the first five propositions upon which the applicant's case was premised, the applicant was employed by the first respondent within the service of ASNSW. She satisfied the definition of paramedic under the Award and was, thereby, classified as the same. Her appointment and classification were not disturbed by her secondment as a Health Advisor (save that her paramedic sub-classification was as a 'Paramedic Specialist' rather than a 'Paramedic Year 2'). In that respect, the employment of the applicant was governed by the Award at the time of her injury and she was, thereby, classified as a 'paramedic' thereunder. 8. In terms of the second declaration sought in the amended application, it may be accepted, therefore, that at the time of her injury "the applicant continued to be employed by the first respondent as a 'paramedic'". That conclusion does not, however, necessarily resolve the ultimate issue in the present proceedings, namely, whether the applicant was a 'paramedic', within the meaning and for the purposes of the Schedule having regard to the manner in which the respondents framed their case. 9. As noted above, the respondents contended that, regardless of whether the applicant maintained her substantive position and continued to be classified as a 'paramedic' under the Award at the time of her injury, the duties that she was performing in her role as a Health Advisor at that time were not operational paramedic duties and, in consequence, she was not a 'paramedic' for the purposes of the Schedule. In their words, "the important discriminator is the work being undertaken, not the descriptor held for the purposes of the Award". 10. The applicant conceded that she was not an "operational paramedic" at the time of her injury; however she maintained that her role as a Health Advisor involved some degree of emergency response. Nonetheless, as I earlier discussed, by the refinement of the issues in the proceedings, the applicant did not rely on any aspect of her duties as a Health Advisor to sustain her contention that the Schedule applied. 11. In my view, the factual premise of the respondents' contention, namely, that the duties the applicant performed whilst seconded as a Health Advisor were different to the duties of an operational paramedic, must be accepted for the following reasons: 1. The position of Health Advisor was distinct from that of paramedic by virtue of title and entry requirements. The significance of those differences is evidenced by the fact that the applicant was required to apply for the position of Health Advisor whilst occupying the role of a paramedic and was only eligible for the role by virtue of her qualifications as a NSW (State) List A Registered Nurse Qualification with clinical experience. 2. A descriptive comparison of the skills and responsibilities held by the positions also discloses substantial differences between the role of Health Advisor and the performance of operational paramedic duties, as follows: 1. The duties of a Health Advisor primarily included the provision, via telephone, of health information and advice to low-acuity triple zero callers. In responding to calls Health Advisors employed a software package which was supplemented with their own prompts and queries (as the package was not entirely prescriptive). The calls were completed by, for example, referring the caller to an appropriate health care professional; providing low level health advice; informing the caller that an emergency ambulance was not necessary; or, in rare cases, upgrading "non-emergency calls to emergency response following the secondary triage process". The duties simply do not entail out of hospital, first contact clinical emergency duties (or other non-emergency paramedic transport duties) and, as I will discuss below, the nature and extent of 'emergency' work performed in the respective positions is distinct. 2. The clinical knowledge required for the positions are quite different. Whilst there is some overlap between the positions in that both required particular clinical knowledge and involve some interaction with patients, the clinical skills required by paramedics are fundamentally different to those of Health Advisors. The provision by paramedics of pre-hospital, first contact on-road emergency care within their scope of practice required different clinical skills (and requisite knowledge requirements) to those exercised by Health Advisors who applied their clinical knowledge to patients through communication via telephone usually with low acuity cases. 3. There was some debate between the parties as to the frequency with which Health Advisors received calls of an emergency nature. The applicant gave evidence that the calls received by HAC were "not always" low-acuity, non-emergency calls (given their origin as triple zero calls). The respondent contended, by reliance on the evidence of Mr Kruit, that there were only a "couple of rare occasions when a Health Advisor had to give emergency clinical advice...[and] call for an ambulance to respond". To the extent that evidence is in conflict, I prefer the evidence of Mr Kruit, who was the Manager of HAC for a period of some eight years, over that of the applicant, who had not yet completed her training period of four weeks. More importantly, however, the manner in which Health Advisors were required to respond to emergencies was plainly different from the response required of paramedics. The function of a Health Advisor in an emergency response was not the application of clinical skills on a patient. Indeed, the evidence suggests that within the limited scope of their involvement in emergency situations their function was ordinarily a precursor to attendance upon the patient by paramedics. Thus, whilst the dispute between the parties as to the number of emergency calls received in the HAC should be resolved in favour of the respondents, that finding does not alter the conclusion that the duties performed by paramedics and Health Advisors were substantially different. 1. As such, without determining the impact of this discussion upon the question of construction in the present proceedings, it must be concluded that the respondents were correct in their submission that the duties being performed by the applicant in her role as a Health Advisor at the time of her injury were different from those of an operational paramedic. The highest point of that distinction is demonstrated by the emergency front-line duties undertaken by paramedics. 2. At the time of her injury the applicant was, therefore, an employee of the first respondent who was appointed and classified as a 'paramedic', but was seconded to perform work of a disparate nature which involved different skills and responsibilities to the operational duties performed by a paramedic in the service of the ASNSW. 3. Having refined the issues in that manner, the sole remaining issue for determination in the present proceedings is whether the applicant was, at the time of her injury, a 'paramedic' within the meaning and for the purposes of the Schedule by virtue of her employment and classification under the Award as a 'paramedic', notwithstanding that, at that time, she was seconded to the role of Health Advisor in which she neither discharged nor was rostered to discharge the duties of an operational paramedic. That question of construction will be the matter which is attended to in the considerations which follow. relevant legislative provisions 1. Before further considering that issue, however, it is convenient to set out the relevant legislative provisions which bear upon its resolution. 2. The jurisdiction of this Court to make declaratory orders is derived from s 154 of the IR Act, which is as follows: 154 Declaratory jurisdiction (1) The Commission in Court Session may make binding declarations of right in relation to a matter in which the Commission (however constituted) has jurisdiction. The Commission in Court Session may do so, whether or not any consequential relief is or could be claimed. (2) Proceedings before the Commission in Court Session are not open to objection on the ground that a declaration of right only is sought. 1. The Interpretation Act 1987 (NSW) ('Interpretation Act') provides as follows in s 34(1): 34 Use of extrinsic material in the interpretation of Acts and statutory rules (1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material: (a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or (b) to determine the meaning of the provision: (i) if the provision is ambiguous or obscure, or (ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable.. 1. Section 34(2)(h) of that Act is in the following terms: (2) Without limiting the effect of subsection (1), the material that may be considered in the interpretation of a provision of an Act, or a statutory rule made under the Act, includes: … (h) any relevant material in the Minutes of Proceedings or the Votes and Proceedings of either House of Parliament or in any official record of debates in Parliament or either House of Parliament. 1. Section 2A of the WC Act is in the following terms: 2A Relationship to Workplace Injury Management and Workers Compensation Act 1998 (1) The Workplace Injury Management and Workers Compensation Act 1998 is referred to in this Act as "the 1998 Act" . (2) This Act is to be construed with, and as if it formed part of, the 1998 Act. Accordingly, a reference in this Act to this Act includes a reference to the 1998 Act. (3) In the event of an inconsistency between this Act and the 1998 Act, the 1998 Act prevails to the extent of the inconsistency. 1. The WC Act and the Workplace Injury Management and Workers Compensation Act 1998 ('WIM Act'), taken together, form the legislative scheme for workers compensation in New South Wales. 2. The WC Act provides the following definition of injury in s 4: 4 Definition of "injury" (cf former s 6 (1)) In this Act: injury: (a) means personal injury arising out of or in the course of employment, (b) includes a disease injury, which means: (i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and (ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and (c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers' Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined. 1. That definition is replicated, in substance, in s 4 of the WIM Act. 2. The term 'worker' is defined in s 4 of the WIM Act as follows: worker means a person who has entered into or works under a contract of service or a training contract with an employer (whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, and whether the contract is oral or in writing). However, it does not include: (a) a member of the NSW Police Force who is a contributor to the Police Superannuation Fund under the Police Regulation (Superannuation) Act 1906, or (b) a person whose employment is casual (that is for 1 period only of not more than 5 working days) and who is employed otherwise than for the purposes of the employer's trade or business, or (c) an officer of a religious or other voluntary association who is employed upon duties for the association outside the officer's ordinary working hours, so far as the employment on those duties is concerned, if the officer's remuneration from the association does not exceed $700 per year, or (d) except as provided by Schedule 1, a registered participant of a sporting organisation (within the meaning of the Sporting Injuries Insurance Act 1978) while: (i) participating in an authorised activity (within the meaning of that Act) of that organisation, or (ii) engaged in training or preparing himself or herself with a view to so participating, or (iii) engaged on any daily or periodic journey or other journey in connection with the registered participant so participating or the registered participant being so engaged, if, under the contract pursuant to which the registered participant does any of the things referred to above in this paragraph, the registered participant is not entitled to remuneration other than for the doing of those things. 1. Section 9 of the WC Act indicates that workers compensation entitlements arise at the time of a workplace injury: 9 Liability of employers for injuries received by workers—general (cf former s 7 (1) (a)) (1) A worker who has received an injury (and, in the case of the death of the worker, his or her dependants) shall receive compensation from the worker's employer in accordance with this Act. (2) Compensation is payable whether the injury was received by the worker at or away from the worker's place of employment. 1. The ASNSW operates under the Health Services Act in the manner outlined above at [12] and [13]. Under that Act, the Health Secretary has, on behalf of the Crown, several functions including "to provide, conduct, operate and maintain ambulance services" (s 67B(1)(a)). The unauthorised provision of such functions attracts a penalty under the Act (s 67E). 2. Section 3(1) of the Police Act 1990 provides that 'police officer' "means a member of the NSW Police Force holding a position which is designated under this Act as a position to be held by a police officer" and that the "NSW Police Force means the NSW Police Force established by this Act". That subsection also defined administrative officer as "a member of the NSW Police Force other than a police officer or a temporary employee". 3. The Police Force is established by s 4 of the Act in order to, inter alia, provide police services for New South Wales (s 6(2)(a)). As part of the role of managing and controlling the Police Force pursuant to s 8 of the Police Act, the Commissioner determines which positions the Police Force consists of in accordance with the Act (s 10(1)). In particular, under s 10(2) the Commissioner: "(a) may create, abolish or otherwise deal with any position in the NSW Police Force, and (b) must classify and grade each such position". 4. Section 11 of the Police Act provides: (1) The Commissioner is required to designate the positions in the NSW Police Force which are to be held by police officers. (2) A position in the NSW Police Force is to be so designated if the Commissioner is satisfied that the holder will be required to carry out, or will be concerned in, operational police duties or that it is otherwise appropriate to do so. (3) The Commissioner may not designate such a position while it is being held by an administrative officer or remove the designation of such a position while it is being held by a police officer. (4) The Commissioner is a police officer. (5) A temporary employee is not eligible to be a police officer. 1. The expression "operational police duties" is not defined, but it is clear from the provision that the Commissioner may designate a position irrespective of whether an employee carries out operational duties as the designation may occur where the officer "will be concerned in" such duties or it is "otherwise appropriate" for the Commissioner to do so. 2. Finally, the Fire Brigades Act 1989 governs the fire brigade. Under that Act, 'fire brigade' means a permanent fire brigade established and maintained by the Commissioner of Fire and Rescue NSW, the services of whose members are wholly at the disposal of the Commissioner and/or any association of persons for which an approval as a volunteer fire brigade is in force under s 9 (but does not include a rural fire brigade). Pursuant to s 6 of the Act, the Commissioner has a duty "to take all practicable measures for preventing and extinguishing fires and protecting and saving life and property in case of fire in any fire district". 3. Section 69(1) of the Fire Brigades Act is titled "Appointment etc of fire fighters" and provides that "The Commissioner may appoint such persons as may be necessary to provide the members of fire brigades for the purposes of this Act". The term 'firefighter' is not defined in that Act at large, but is defined in s 74A for the purposes of Division 2A (with respect to Community Fire Units) as follows: fire fighter means a member of a fire brigade appointed under this Act or a volunteer rural fire fighter as defined in section 8 (3) of the Rural Fires Act 1997. construction of the schedule Relevant Principles 1. The Full Bench of the Commission recently discussed the proper approach to statutory construction in The Industrial Relations Secretary on behalf of Department of Justice (Corrective Services NSW) v Public Service Association and Professional Officers Association Amalgamated Union of New South Wales (on behalf of Darren Rudd) [2015] NSWIRComm 11 ('Rudd') at [22] – [25]. I adopt that analysis for the purposes of this judgment. 2. In Rudd (at [25]), specific reference was made to the judgment of the High Court in Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross (Matter No S417/2011) [2012] HCA 56; (2012) 248 CLR 378 ('Certain Lloyds') and the principles expounded therein. It is useful to replicate those principles, in part, as both parties placed substantial reliance upon that judgment in their submissions as to the interpretation of the terms of the provision and the permissibility of recourse to extrinsic material. In particular, the parties drew upon the following comments of French CJ and Hayne J (Kiefel J agreeing) at [23]-[26]: [23] It is as well to begin consideration of this issue by re-stating some basic principles. It is convenient to do that by reference to the reasons of the plurality in Alcan (NT) Alumina Pty Ltd v Cmr of Territory Revenue: This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy. [24] The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky, '[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute'. [Emphasis added.] That is, statutory construction requires deciding what is the legal meaning of the relevant provision 'by reference to the language of the instrument viewed as a whole', and 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. [25] Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure. Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted. It is important in this respect, as in others, to recognise that to speak of legislative 'intention' is to use a metaphor. Use of that metaphor must not mislead. '[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have'. [Emphasis added.] And as the plurality went on to say (31) in Project Blue Sky: Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction (32) may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning." To similar effect, the majority in Lacey v Attorney General (Qld) (33) said: "Ascertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts." The search for legal meaning involves application of the processes of statutory construction. The identification of statutory purpose and legislative intention is the product of those processes, not the discovery of some subjective purpose or intention. [26] A second and not unrelated danger that must be avoided in identifying a statute's purpose is the making of some a priori assumption about its purpose. The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions. As Spigelman CJ, writing extra-curially, correctly said: 'Real issues of judicial legitimacy can be raised by judges determining the purpose or purposes of Parliamentary legislation. It is all too easy for the identification of purpose to be driven by what the particular judge regards as the desirable result in a specific case.' [Emphasis added.] And as the plurality said in Australian Education Union v Department of Education and Children's Services: 'In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose'. [Citations and footnotes omitted] 1. Those principles were affirmed by Crennan and Bell JJ at [68]. Their Honours continued at [70] as follows: While consideration of extrinsic materials should not displace the clear meaning of the text, the purpose of a provision may be elucidated by appropriate reference to them...it is uncontroversial that in determining the meaning of the text of a statute or provision a court may take into account the general purpose and policy of a provision and, in particular, the mischief that it is intended to remedy... 1. Following this approach, Kiefel J observed at [89]: It is legitimate to resort to materials outside the statute, but it is necessary to bear in mind the purpose of doing so and the process of construction to which it is directed. That purpose is, generally speaking, to identify the policy of the statute in order to better understand the language and intended operation of the statute. An understanding of legislative policy by these means does not provide a warrant for departing from the process of statutory construction and attributing a wider operation to a statute than its language and evident operation permit. 1. There was also some discussion as to the principles of statutory interpretation which relate to beneficial or remedial legislation. In that respect, it may be accepted that the orthodox approach to the construction of such legislation is to construe the legislation "so as to give the fullest relief which that fair meaning of its language will allow": Bull v Attorney-General (NSW) (1913) 17 CLR 370 (per Isaacs J, dissenting). However, as Brennan CJ and McHugh J stated in IW Applicant v the City of Perth (1997) 191 CLR 1 at 11: …the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural. 1. It is upon those principles that this discussion proceeds. Submissions of the Parties 1. I turn, then, to the parties submissions as to the construction of the Schedule and, in particular, the attention that they directed to the term 'paramedic' (in apparent isolation from the surrounding words of the Schedule). In summarising those submissions I do not propose to repeat, but will have regard to, the submissions of the parties which were set out earlier in this judgment in aid of refining the ultimate issue in the proceedings. 2. Mr Ower made oral and written submissions which, when taken together, may be summarised as follows: 1. The established principles of statutory interpretation dictate that the term 'paramedic' should be given its ordinary grammatical meaning: see Certain Lloyds at [23] and [25]. 2. In the circumstances of the Schedule, the ordinary meaning of the term 'paramedic' is an employee of the first respondent who is appointed to a position which is classified as a 'paramedic' under the Award: see The Australian Workers Union, New South Wales v Office of the Environment and Heritage [2012] NSWIRComm 133 ('AWU case') at [97]. That meaning mirrors the definition of 'paramedic' under the Award. 3. There "is no principal reason" the Court should not rely on the Award definition to denote the meaning of a 'paramedic' in the present proceedings, given the WC Act itself does not contain a definition of the term. 4. That conclusion is supported by the language of the Schedule where the term 'paramedic' appears absent any adjectival qualification. By refraining from qualifying the term, the legislature evinced an intention for all employees of the first respondent who were appointed and classified as a 'paramedic' to fall within the meaning in the subject provision. 5. Thus, the applicant was a 'paramedic' for the purposes of the Schedule at the time of her injury. That must follow regardless of the specific duties she was performing at that time. 6. The judgment in the AWU case, upon which the respondents seek to rely, should be distinguished from the present proceedings, as the facts of that matter concerned firefighters who were not employed by the fire brigade. Although the case focused upon the duties a worker is performing when they are injured, it did so in the context of broadening the view of who may be defined as a 'firefighter' (in the absence of a statutory or award definition of the same), not in order to exclude certain employees who were classified as such. In fact, in the AWU case, Boland J expressed the view that a paramedic employed by the first respondent would undoubtedly be covered by the Schedule (see [97]). 7. The legislature intended that police officers, paramedics and firefighters would be protected from the effect of the Amendment Act in much broader circumstances than when performing emergency duties. This is evident from the reference made to 'injuries' in the Schedule. The term 'injury' is defined under that Act as an injury arising out of or in the course of employment which can be sustained while doing the actual job required, as well as while going to and from that job or doing things incidental to that work or during a period of absence or interval of absence from that work, as long as it is sufficiently connected. 8. Furthermore, as the WC Act is beneficial legislation, any ambiguity in the definition should be resolved in favour of the worker: see Bird v Commonwealth [1988] HCA 23; (1988) 165 CLR 1 and Guppy v Australian Postal Corporation [2013] FCA 489; (2013) 212 FCR 380. 1. Mr Ginters made oral and written submissions which, when taken together, may be summarised as follows: 1. The scope of the term 'paramedic' in the Schedule must be determined in accordance with the well-settled principles of statutory interpretation. Upon those principles, a "starting point" is the consideration of the ordinary grammatical meaning of the term 'paramedic'. In that respect, the term is defined in the Macquarie Dictionary (6th ed 2013, Macmillan Publishing Group) at 1039 to mean a person who "provides specialist primary care to the injured or sick" or "performs paramedical services". 2. However, the ordinary grammatical meaning of the term 'paramedic' does not delimit the scope of its meaning in the Schedule, as the Court must ascribe the term the meaning that the legislature is taken to have intended it to have: Certain Lloyds at [25]. 3. In the present proceedings, the purpose and policy of the legislation and, in particular, the mischief to which the statute is directed and which it is intended to remedy, "is of particular relevance to the construction task": see Commissioner of Taxation v Unit Trend Services Pty Ltd [2013] HCA 16; (2013) 250 CLR 523 at [47]; Certain Lloyds at [25]. 4. The context and purpose of the Schedule is evident from the following statement made by Mr Shoebridge in support of a change which was ultimately made to the Amendment Act immediately prior to its passage: These amendments will ensure that the protection from benefit cuts proposed by the Government to apply to police, Rural Fire Service and State Emergency Service workers will also apply to those other, much-prized emergency personnel, paramedics and firefighters. As the Government's bill is currently drafted, police have their benefits protected, Rural Fire Service personnel and State Emergency Service personnel have their benefits protected, but the other emergency service personnel, the firefighters and the paramedics, who will be working side by side with the Rural Fire Service and State Emergency Service personnel – all of whom will be going to the same bushfires, or the same road trauma incidents, or to fight the same fires and dealing with the same consequences of emergencies throughout our city, country and regional areas – will not (Hansard, Legislative Council, 21 June 2012, p 13455). 1. Thus, the legislative purpose of the Schedule "was to exempt from the 2012 amendments only a small and select group of occupations that had in common the provision of emergency services and may be working side by side with each other attending the same emergency": the AWU case at [102]. 2. Consistent with that legislative purpose and context, a person who is not performing the duties of an operational paramedic at the time of their injury is not a 'paramedic' for the purposes of the subject provision. 3. Hence, the term 'paramedic' in the Schedule should be construed as denoting an employee of the first respondent who, at the time of their injury or illness: 1. Possessed a Diploma in Paramedic Service (or any equivalent qualification recognised by the Chief Executive of the ASNSW as an equivalent or predecessor qualification) or was enrolled in a course of study leading to a Diploma in Paramedic Science; and 2. Was "included in on-road rostering arrangements or was performing 'in the field' paramedic emergency/casualty response duties" (operational paramedic duties). 1. The determination of whether an employee is a 'paramedic' for the purposes of the WC Act thereby requires reference to the duties being performed by that employee at the time of their injury. Given that the applicant was plainly not performing the duties of an operational paramedic at the time of her injury she was not an 'operational paramedic' and did not satisfy element (b) of the definition of a 'paramedic' set out above. The applicant was not, therefore, a 'paramedic' within the meaning and for the purposes of the Schedule. 2. An interpretation of the term 'paramedic' in the Schedule which included all persons employed by the first respondent who hold paramedic qualifications but are not included in its on-road rostering arrangements and do not perform operational paramedic duties would be "too broad" such that "it does not accord with the legislative purpose and context" of the subject provision. 3. Upon that basis, Stockwell was wrongly decided (see, in particular, [31]-[34] of the decision). Stockwell is also factually distinguishable from this matter as, although Mr Stockwell was providing advice via the telephone like a Health Advisor, his duties included "giving advice in emergency situations to injured members of the public, emergency services personnel and others" (at [29]). 4. The beneficial construction sought by the applicant in reliance upon Bird cannot alter the definition of the term 'paramedic' in the WC Act. In any event, what is 'beneficial' for an employee in the circumstances may not be entirely clear. 1. The parties were invited to advance supplementary submissions as to the permissibility of recourse to extrinsic material in construing the term 'paramedic' in the subject provision. Those submissions were largely directed to whether the threshold requirement in s 34(1)(a) or s 34(1)(b)(i) of the Interpretation Act were satisfied in the present proceedings. 2. The applicant submitted that the term 'paramedic' was not ambiguous as it simply included all employees of the first respondent who were appointed and classified as a 'paramedic' under the Award. That "ordinary meaning" of the term did not lead to any "manifestly absurd or unreasonable consequences". 3. As such, the applicant contended that the threshold requirement of s 34(1)(b)(i) of the Interpretation Act was not satisfied and there was no warrant to have recourse to extrinsic material. In any event, it was submitted that extrinsic material such as Parliamentary debates cannot dictate the meaning of a provision in the manner that the respondents contended: Certain Lloyds at [25]–[26]. No submission was made as to the operation of s 34(1)(a) of the Interpretation Act. 4. The respondents' primary submission was that the "ordinary meaning" of the term 'paramedic' involves the performance of operational paramedic duties including emergency response. To that extent, Mr Shoebridge's comments "confirm" such a construction, as he refers to "emergency personnel" working side by side in the provision of emergency services. Thus, "taking into account the context of the word appearing in the Schedule and the purpose or object underlying the Amendment Act", it is permissible to have regard to the Parliamentary debates pursuant to s 34(1)(a) of the Interpretation Act, as that material merely confirms that the meaning of the provision is the ordinary meaning conveyed by the text of the provision. 5. In the alternative, the respondents contended that the term 'paramedic' in the subject provision was "ambiguous" for the purposes of s 34(1)(b)(i) of the Interpretation Act and that consideration may, thereby, be given to extrinsic material as an aid to understanding the purpose of the provision. It was submitted that ambiguity arises due to the absence of a definition of "paramedic" in the WC Act. The respondents contended further that the ambiguity of the subject provision was demonstrated by several decisions which consider the scope of that provision, including Ware v NSW Rural Fire Service [2014] NSWWCCPD 33; Stockwell and the AWU case. 6. In those circumstances, in reliance upon s 34(1)(a), or, in the alternative, s 34(1)(b)(i) of the Interpretation Act, the respondents contended that it was permissible for the Court to have regard to Mr Shoebridge's address in ascertaining the scope of the term 'paramedic' (as Boland J did in the AWU case at [102]): see Norrie v NSW Registrar of Births, Deaths and Marriages (2013) 84 NSWLR 697 at 714 ('Norrie'); Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642 at 649–652, 663–334; Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at [44] and Certain Lloyd's at 389–390, 405–406, 411–412. 7. Two elements of the parties' submissions require consideration before turning to the question of construction per se: the permissibility of recourse to extrinsic material and the decisions in Stockwell and the AWU case. Extrinsic Material 1. It is convenient to first address whether consideration may be given to extrinsic material, in particular the comments of Mr Shoebridge, in construing the subject provision. It should be noted, in this respect, the comments in question were made by Mr Shoebridge on 22 June 2012 in support of an amendment he moved whilst the Bill was in the committee stage in the Legislative Council (see the AWU case at [3]). Mr Shoebridge's amendment, and the Bill itself, were passed on that day. 2. It is plain that Mr Shoebridge's comments fall within the material described by a 34(2)(h) of the Interpretation Act and, therefore, may be considered in the interpretation of the subject provision if the threshold requirements outlined in s 34(1)(a) or (b)(i) are satisfied. (The respondents did not rely on s 34(1)(b)(ii) in the present proceedings.) 3. As will be later developed in the discussion of the construction of the Schedule, I do not consider the meaning of the Schedule is ambiguous or obscure and, hence, the provisions of s 34(1)(b) of the Interpretation Act do not operate in this case. However, I do consider that, again for reasons later developed in relation to the construction of the provision as well as some additional remarks below, the extrinsic material in question is applicable having regard to the provisions of s 34(1)(a) of that Act as the material confirms, in my view, that the meaning of the Schedule is the ordinary meaning conveyed by the terms of the provision (taking into account context and purpose), albeit in a manner which differs from that submitted by the respondents. 4. The respondents contended that the comments of Mr Shoebridge confirmed that the legislative intention behind the subject provision was to shield only those paramedics who work in the field attending emergencies side by side with other emergency workers (see the AWU case at [96]). They relied upon the conclusions drawn by Boland J from Mr Shoebridge's statements: 98 The rationale for including "firefighters" in item 25 was that they worked side by side with rural firefighters fighting the same fires. That is the case with employees of the respondents when they are undertaking firefighting duties. It would be, as Mr Shoebridge argued, "grossly unfair" to exclude employees of the respondents from item 25 when they are performing the work of firefighters. … 102 It is apparent from the Parliamentary debate the purpose of extending item 25 to cover firefighters and paramedics was to exempt from the 2012 amendments only a small and select group of occupations that had in common the provision of emergency services and may be working side by side with each other attending to the same emergency. Whilst employees of the respondent may be regarded as providing an emergency service when they perform the work of firefighting, they are not engaged in providing emergency services or likely to be working side by side with other emergency workers when performing other work that comes within the ambit of their designated occupation of Ranger, Forester, Field Officer, Project Officer and the like. 1. I accept the respondents' submissions, in this respect, only to the extent that it is contended that the comments of Mr Shoebridge assist in identifying that the purpose the Schedule is consistent with the ordinary meaning conveyed by the text of the provision. 2. Prior to its passage, Mr Shoebridge sought the inclusion of paramedics and firefighters in the categories of emergency services workers who were shielded from the effects of the Amendment Act. He contended that this was necessary to avoid the inequitable distribution of the benefits afforded by the Schedule, namely, the protection of workers compensation entitlements, to some "much-prized emergency personnel" but not other, equally important, emergency workers. 3. Those statements confirm that the Schedule was plainly drafted to ensure that the nominated categories of employee were guarded against the effects of the Amendment Act. Given that it is evident, as Boland J observed in the AWU case and as I will later discuss, the commonality between the protected categories of worker is that "they are all associated with an emergency service" (the AWU case at [95]), it may be readily concluded that the particular purpose of the provision was to ensure that the nominated emergency workers were shielded against the effects of the Amendment Act. 4. However, as I will later discuss, I do not accept that those comments uphold the particular meaning contended for by the respondents. 5. Further, even if the case of ambiguity, the comments of Mr Shoebridge could not extend, in the manner that the respondents' proposed, beyond demonstrating the purpose or mischief of the Schedule, to directly explicating the meaning of the term 'paramedic' therein. 6. It is useful, in that respect, to refer to particular authority which concerns recourse to extrinsic material in the nature of Parliamentary speeches or debates. In Harrison v Melhem (2008) 72 NSWLR 380, Spigelman CJ noted (at 384): Statements of intention as to the meaning of words by ministers in a Second Reading Speech, let alone other statements in parliamentary speeches are virtually never useful. Relevantly, in my opinion, they are rarely, if ever, capable of assisting in the ascertainment of the meaning of the provisions within s 34(1) of the Interpretation Act 1987. I only refrain from using the word "never" to allow for a truly exceptional case, which I am not at present able to envisage. 1. In that judgment (at 399), Mason P (with Beazley and Giles JJA agreeing at 403) likewise observed that: Statements in Parliament, even by ministers during the Second Reading debate, will however seldom be available to elucidate the meaning of the later-enacted text. Identification of mischief and purpose is one thing, statement of meaning is another. 1. Campbell JA applied that authority in Amaca Pty Ltd v Novek [2009] NSWCA 50 at [74]-[77] and noted further (at [78]): Given the fundamental difference that there is between the intention that a Minister has in promoting a particular legislative measure of the Minister's understanding of how that provision will operate in practice, on the one hand, and the meaning of the provision on the other, a court may well find, concerning the construction of the particular statutory provision in question and the particular Second Reading Speech in question, that all of part of the speech is not capable of assisting in the ascertainment of the meaning of the provision. 1. Mr Shoebridge's comments are not "capable of assisting in the ascertainment of the meaning of the provisions" in the manner contended for by the respondents because, whilst facilitating the identification of the purpose of the provision, they cannot stand as a statement of meaning: Harrison v Melhem at 384. 2. Two further observations are required before leaving the extrinsic material. 3. First, the meaning attributed by the respondents to the word 'paramedic' in the Schedule sits uncomfortably with what they submit derived, in finding the purpose of the Schedule, from Mr Shoebridge's comments. In particular, the respondents' contention those comments indicated that the legislature only intended, by the Schedule, to shield paramedics engaged in emergency front-line work with other emergency services personnel is plainly inconsistent with what would seem to be the respondents' proposed meaning of the word 'paramedic' in the Schedule because certain aspects of that work, which I have identified above, would not constitute emergency front-line duties undertaken in conjunction with other emergency services workers in an emergency response setting. 4. Secondly, the emphasis placed by Mr Shoebridge upon emergency services personnel working side by side at the same emergencies simply reflects, in my view, the fact that the comments were made in support of his proposed amendment to the subject provision. That is, his statements constituted points of argument in advocacy for equality of outcome for emergency services workers holding the positions identified in the Schedule without any intention to precisely delineate the scope of the exemption effected by the Schedule as contended for by the respondents. In that respect, it must be recalled that Mr Shoebridge was attempting to persuade the Parliament of the inequity that would arise if only some categories of emergency services workers were exempted from the effects of the Amendment Act. His comments do not, therefore, disclose a particular view of the duties which all workers covered by the provision would perform or that the subject group of employees would only fall within the Schedule when performing certain emergency duties but, rather, that, as each class of worker may attend the same emergencies, it would be inappropriate for their workers compensation entitlements to be different. 5. Thus, consistently with s 34(1)(a) (and as I will shortly discuss) the comments of Mr Shoebridge merely confirm what is already apparent upon the terms of the Schedule – that the legislature intended to shield the categories of emergency services workers nominated in that provision from the effects of the Amendment Act. Authorities Relied Upon by the Parties - Stockwell and the AWU Case 1. Both parties placed substantial emphasis upon what were said to be conflicting approaches to determining the scope of the meaning of the term 'paramedic' in the Schedule in Stockwell and the AWU case. In particular, the applicant relied upon the reasoning of Deputy President Roche in Stockwell and, to a lesser degree, the comments of Boland J in the AWU case at [97], to support her contention that the term 'paramedic' in the Schedule invoked an employee's classification under the Award. The respondents, by contrast, submitted that the AWU case indicated that the term should be construed by reference to the duties that such employees discharged. 2. As I will find, however, the assistance which may presently be derived from the decisions in Stockwell and the AWU case is significantly more limited than that proposed by the parties. Of course, neither Stockwell nor the AWU case constitute binding precedent upon this Court. More importantly, however, both decisions concern factual circumstances which differ from those before the Court in this matter and, it may be noted, from each other. 3. Nevertheless, there were some observations made in the decisions that may provide assistance (or, with respect to the AWU case, require resolution) in my consideration of the ultimate issue for disposition in the present proceedings. 4. The decision of Deputy President Roche in Stockwell was a determination of appeal against a decision of the Workers Compensation Commission ('WCC') constituted by Arbitrator Foggo. In that decision, Arbitrator Foggo found that Mr Stockwell was a 'paramedic' for the purposes of the Schedule because, inter alia, he was classified as a 'paramedic' under the relevant award. Deputy President Roche held that arbitrator had erred in finding that "Mr Stockwell was clearly a paramedic employed by the [appellant], that being the description on his pay slips" (at [97]) because the evidence revealed that his classification at the time of injury was uncertain (since the descriptor on his pay slips was not a classification provided for by the Award). That error alone was found to require the matter to be redetermined: Stockwell at [97]. 5. Thus, the decision of the Deputy President concerned that particular error made by the Arbitrator. The gravamen of the issue before him, that is, whether Mr Stockwell was a paramedic for the purposes of the Schedule, was not resolved due to the remitter. His observations as to that issue (to which the parties referred) did not, in consequence, have any bearing on the resolution of the case. 6. The context of that decision must, therefore, be distinguished from the factual circumstances of the present case where, as I have found, the applicant continued to be classified as a paramedic under the Award whilst seconded to a role with different characteristics (qua duties). 7. Nevertheless, it is readily apparent why the applicant placed reliance upon the decision in Stockwell. Without determining Mr Stockwell's classification, Deputy President Roche observed that, had Mr Stockwell been classified as an 'Ambulance Officer – Grade 2' "there seems little doubt that he would have been entitled to be described as a paramedic and would be exempt from the consequences of the amendments introduced by the 2012 amending Act" (at [93]). The Deputy President stated: 93 …This would follow regardless of the duties he actually performed. That is so because cl 25 is concerned primarily with the classification of the worker, that is, whether he or she is a police officer, paramedic or firefighter. Whether, because of the particular activities required by their employment from time to time, workers who are not classified or employed as police officers, paramedics or firefighters can come within cl 25 will depend on the circumstances of each case. 1. The Deputy President noted at [103] that "Mr Stockwell's duties [were] not determinative of whether he was, at the time of the injury, a paramedic". He made the following observations (at [118]): In the present case, if it is ultimately found that, at the time of the psychological injury, the appellant employed Mr Stockwell as a paramedic, then, regardless of the activities he was performing when he was injured, he is entitled to the exemption provided in [the Schedule]. That follows from the clear terms of [the Schedule], which do not say that a paramedic is only exempt from the 2012 amendments if injured while administering emergency health care to a person in need of such care, or that a firefighter is only exempt if injured while actually fighting a fire, or that a police officer is only exempt while attempting to apprehend a dangerous offender. 1. He concluded that "a person who is employed as a paramedic is a paramedic regardless of the exact nature of the duties he or she is performing at the time of injury" (at [120]). As such, the issue to be redetermined was whether Mr Stockwell was employed as a paramedic at the time of his injury, not whether the nature of the duties he performed were those of a paramedic (at [125]). 2. Deputy President Roche identified the following consequence of that analysis (at [129] and [137]): 129 …a worker who does not meet the definition of paramedic in [the Award] will not normally be a paramedic under [the Schedule]. That is because, just as a private citizen does not become a police officer by making a citizen's arrest, a worker with [the ASNSW] who does not have a "clinical certificate to practice" will not, save in exceptional circumstances, become a paramedic by giving clinical advice he or she is not entitled to give. … 137 …if it is found that, at the time of the injury, he was a not a paramedic then, without deciding it, it is difficult to see how he comes within [the Schedule] exemption, even if he gave medical advice in the course of his work in the operations centre. 1. He concluded: 130 It follows that, in the circumstances of this case, where [the Award], which governs the parties' employment relationship, clearly defines the meaning of a paramedic, it is not necessary to have resort to the dictionary definition of that term. 1. Deputy President Roche expressed the following alternative analysis (at [131] – [134]): 131 If I am wrong on this issue, and [the Award] does not provide a complete and exclusive definition of "paramedic", or does not cover the field, I would have concluded, as I did in Ware with regard to firefighters, that the legal meaning of "paramedic" corresponds with its normal grammatical (dictionary) meaning and there is nothing in the context, purpose or policy behind [the Schedule] that leads to a different conclusion. 132 The Macquarie Dictionary defines a paramedic as "a person who provides specialist primary care to the injured or sick" and "a person who performs paramedical services". Paramedical is defined to mean "of or relating to healthcare workers other than doctors, dentists, nurses, etc., who have special training in the performance of supportive health treatments". 133 A worker can provide specialist primary care to the injured or sick without having to be "in the field" or directly "hands on". Provided they are qualified to give such advice, a person who provides the advice over the phone is just as much a paramedic as the person at the scene of the particular incident where the care is being provided. 134 Therefore, if Mr Stockwell gave the kind of advice that he gave evidence of at the arbitration, and if it is found that, at the time of his injury, he was qualified to give that advice, that is, if he had a "clinical certificate to practice" as a paramedic, he is a paramedic under cl 25 and is exempt from the effect of the 2012 amendments. 1. The decision in Stockwell may provide some guidance in that the Deputy President plainly preferred an approach to the construction of the Schedule that relied upon the classification of an injured worker in somewhat similar circumstances to the present matter, that is, where the applicant was not performing operational paramedic duties. To that extent, I propose to have regard to his reasoning below. 2. As earlier observed, the applicant did not pursue the declaration upon the alternative basis discussed by Deputy President Roche in Stockwell, namely, that, if attention under the Schedule was, when properly construed, directed to the duties performed by an injured worker, her duties as a Health Advisor, whilst bearing a different title, should nonetheless be found as sufficiently similar to those of a paramedic as to bring the applicant within the Schedule. 3. The factual circumstances of the AWU case, to which I now turn, are significantly less analogous to the present proceedings than those in Stockwell. That decision concerned persons employed by the Government of New South Wales within specified agencies other than the fire brigade who were required to perform firefighting duties as an ancillary function of their work and whose employment was covered by one of the seven nominated Awards (none of which concerned the regulation of permanent firefighters engaged by the fire brigade). Boland J held that those persons were 'firefighters' for the purposes of the Schedule when, and only when, they were performing "firefighting duties" (which his Honour defined therein). Such workers were said to attract the benefit of the Schedule when engaged in firefighting duties as the Schedule was "not limited" to members of the fire brigade whose full time occupation was firefighting (at [97] and [99]). 4. His Honour reached that conclusion in proceedings where both parties accepted that the term 'firefighter' in the Schedule must be considered by reference to the duties performed by the workers concerned. The contest in that case was confined to whether, on the one hand, all such employees who performed the duties of a firefighter (as an occasional part of their work) should be exempted from the effects of the Amendment Act pursuant to the subject provision or, on the other hand, whether those employees should be exempt only when performing firefighting duties. There was no dispute that, when engaged in firefighting duties, the subject employees were 'firefighters' for the purposes of the Schedule. Attention was not fixed upon whether the workers, if classified as firefighters, would attract the provisions of the Schedule when not engaged as firefighters per se. His Honour's observations at [97] were in this sense obiter, although they do serve to underline the distinction in his decision between the subject group occasionally performing the duties of a firefighter and those classified or designated as such. 5. Paragraph [97] of the decision was as follows: 97 There can be no doubt, for example, that a police officer designated as such under the Police Act 1990 or a firefighter who is a member of a fire brigade appointed under the Fire Brigades Act 1989 or a paramedic employed by the Ambulance Service of NSW, are covered by item 25. 1. By that paragraph, Boland J states that an officer of one of the emergency services agencies established by statute designated as holding one of the nominated categories of employment in the Schedule would, by virtue of that engagement, be caught by that provision. As mentioned, however, his Honour did not make those comments in circumstances where he was specifically called upon to determine whether an officer, so designated, would be caught by the Schedule in circumstances where they were not performing the full range or core duties of such a position. 2. The respondents' reliance upon the AWU case as authority for their contention that the term 'paramedic' in the Schedule should be interpreted by reference to duties rather than classification in the present case is, therefore, to some extent misplaced. His Honour was simply not called upon, in the resolution of the issues before him, to consider whether the designation of the workers as firefighters (whether employees of the Fire Brigade or otherwise) might have a bearing upon that question, as the subject group of employees were not classified as such. 3. Nonetheless, his Honour was clearly of the view that the actual performance of duties of a kind corresponding with those of firefighting was such as to bring an employee performing those functions into the Schedule. That conclusion has the potential to sit somewhat uncomfortably with the applicant's contention that the sole axis upon which the Schedule operated was the Award classification of the nominated emergency services workers. 4. However, I consider that the better view is that propounded by the applicant, namely, that Boland J's reliance upon 'duties' must be seen in the context of his Honour broadening who may be defined as a firefighter rather than erecting a means of exclusion. This may reconcile his Honour's reliance on duties to resolve the case before him with paragraph [97] of his judgment. 5. In any event, on the conclusion I will reach in this matter, if the AWU case is authority for the proposition that, in order to be caught by the Schedule, an employee of an emergency services agency is required to both hold that designation and perform particular duties associated with the same (or be rostered to perform the same) at the time of injury I would, with respect, not follow the decision. 6. I turn then to consider the meaning of the term 'paramedic' in the Schedule and to determine whether the applicant was a 'paramedic', within the meaning and for the purposes of that provision at the time of her injury. Consideration of the Construction of the Schedule 1. I will commence by briefly recapping the issue at hand and the submissions of the parties (without derogation from my earlier summary). 2. In answer to that question of construction, the applicant contended that the ordinary grammatical meaning of the term 'paramedic', in the context of the Schedule, denoted an employee in the service of ASNSW who was appointed to a position classified as a paramedic under the Award and who satisfied the definition of 'paramedic' therein. It was submitted that there was no reason to depart from that meaning in the circumstances of the present proceedings. 3. The respondents conceded that the ordinary grammatical meaning of the term was a "starting point" for construing the provision. However, the respondents contended that "whilst ordinarily the legal meaning of a provision in a statute will correspond with its grammatical meaning this will not always be the case" as the Court must ascribe the meaning that the legislature is taken to have intended the term to have: see Certain Lloyds at [25]. As noted above, the respondents submitted that, in light of the purpose of the provision, the term paramedic in the Schedule denoted a person employed within the service of ASNSW who possessed a Diploma in Paramedic Service (or any equivalent qualification recognised by the Chief Executive of ASNSW as an equivalent or predecessor qualification) or was enrolled in a course of study leading to a Diploma in Paramedic Science and was "included in on-road rostering arrangements or was performing 'in the field' paramedic emergency/casualty response duties". 4. The respondents contended that the Court should adopt a narrower and less inclusive definition of the word 'paramedic' than, they conceded, might otherwise be attributed to that term. In particular, they sought to confine the meaning of the word 'paramedic' for the purposes of the Schedule by reference to a qualification based upon the performance of operational duties. 5. The respondents conceded in oral argument that the effect of their submissions was that the word 'operational' must be read into the Schedule before 'paramedic' such that the requirement of operational paramedic duties would be imported into the provision. It appears, from the development of the respondents' argument, that the discussion of the "ordinary grammatical meaning" of the word 'paramedic' in their written submissions and, in particular, the recourse to the dictionary definition thereof, was undertaken in an effort to demonstrate that reading the term 'operational' into the provision was not inconsistent with the text of the provision (which could encompass a person classified as a paramedic who performed the subject duties), especially when regard was had to the purpose of the Schedule. 6. The respondents referred to the definition of 'paramedic' in the Macquarie Dictionary, op cit. That dictionary provided the following definitions of the word when used as a noun: 1. a person who provides specialist primary care to the injured or sick. 2. a person who performs paramedical services. 1. The word 'paramedical' was defined in the same dictionary as "of or relating to healthcare workers other than doctors, dentists, nurses, etc., who have special training in the performance of supportive health treatments". 2. The first of those definitions offers some support to the contentions of the respondents in that the definition would seem to be closely aligned to the respondents' notion of an operational paramedic. 3. The second aspect or definition draws attention to the expression 'paramedical'. That definition offers the respondents less assistance. Whilst this definition does coincide with some parts of the respondents' contentions as to the meaning of paramedic (in the sense that the definition refers to an employee of the requisite qualifications performing duties), the duties described are much broader than the duties of operational paramedics which form the centre of the respondents' case. 4. By contrast, the definition of 'paramedic' provided by the Oxford English Dictionary (2nd ed 1989, Oxford University Press) at 198 is as follows: "a paramedical worker; (in later use) spec. one trained to provide specialised emergency medical care". This definition is more favourable to the applicant as it focuses upon the position of the worker and their training rather than the actual performance of particular duties. 5. The foregoing analysis demonstrates the limitations of dictionary definitions in construction, particularly in the circumstances of the present matter, and brings to mind the observations of Mason J (when he was President of the NSW Court of Appeal) in House of Pearce Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 at 505: 25 The primary judge's use of the dictionaries is criticised by the appellants as reflecting a search for a majority position and a preference for the narrower, less inclusive definitions over the broader if less generally used meanings. 26 It has been said that "words are only pictures of ideas upon paper": Isaacs J in Fell v Fell (1922) 31 CLR 268 at 276, citing Wilmot CJ in Dodson v Grew (1767) Wilm 272 at 278; 97 ER 106 at 108. Jackson J once remarked that "dictionaries are the last resort of the baffled judge": Jordan v De George 341 US 223 (1951) at 234. 27 Nevertheless, dictionaries are frequently used, and this approach to statutory interpretation has support from the highest authority: see, eg, State Chamber of Commerce and Industry v Commonwealth (1987) 163 CLR 329 at 348. Few judges emulate Lord Wilberforce, who never used dictionaries for the purpose of determining the common understanding of words and shut his ears if they were referred to in court: see Bennion, Statutory Interpretation: a Code, 3rd ed (1997) Butterworths, London at 946. 28 A dictionary may offer a reasonably authoritative source for describing the range of meanings of a word, including obsolete meanings. Dictionaries recognise that usage varies from time-to-time and place-to-place. However, they do not speak with one voice, even if published relatively concurrently. They can illustrate usage in context, but can never enter the particular interpretative task confronting a person required to construe a particular document for a particular purpose. I agree with the following remarks of Judge Randolph of the United States Court of Appeals for the District of Columbia Circuit: "Dictionaries, Plain Meaning and Context in Statutory Interpretation" (1994) 17 Harvard Journal of Law and Public Policy 71 at 72: "…citing … dictionaries creates a sort of optical illusion, conveying the existence of certainty — or 'plainness' — when appearance may be all there is. Lexicographers define words with words. Words in the definition are defined by more words, as are those words. The trail may be endless; sometimes, it is circular. Using a dictionary definition simply pushes the problem back." 29 The limitations of dictionaries are discussed with magisterial clarity by Mahoney JA in Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541 at 560-561. Because the passage is lengthy I do not set it out. However, I respectfully agree with what his Honour has written there. 30 The task in hand is not a philosophical, linguistic or etymological exercise probing the inner or outer limits of "church" in 1954 Australian usage. In the end it is a search for the meaning of a particular document issued in a particular context. 1. As Mason J observed, the passage from Mahoney JA's judgment to which he refers is lengthy. However, it is appropriate, in the present context, to extract part of Mahoney JA's judgment in Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541 ('Provincial Insurance') (at 560) as follows: Dictionaries are not a substitute for the judicial determination of theinterpretation and then construction of statutes and other documents: LifeInsurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 at 78 per Isaacs J.The meaning of the words used in a statute or document is not merely thesum of the individual meanings of the words used, ascertained fromdictionaries. To adapt the much cited comment of Holmes J, a word is theskin of a living thought, and it is the thought which the court must ascertainand apply. In doing this, it is, of course, necessary first to determine what is theordinary or natural meaning of the words used because primarily it is fromthat that the intention of the legislator or of the parties is to be ascertained:seeM P Metals Pty Ltd v Commissioner of Taxation (1968) 117 CLR 631at 634; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner ofTaxation (1981) 147 CLR 297 at 304-305; Tullamore Bowling & Citizens ClubLtd v Lander [1984] 2 NSWLR 32 at 53. But that meaning is the ordinaryusage of society: Shore v Wilson (1842) 9 Cl & Fin 355 at 527; 8 ER 450 at518 per Coleridge J and R v Peters (1886) LR 16 QBD 636 at 641. And it isto be taken from the judge's understanding of the sense in which words areused: see, eg, NSW Associated Blue Metal Quarries Ltd v FederalCommissioner of Taxation (1956) 94 CLR 509 at 514 per Kitto J. In MidlandRailway Co v Robinson (1889) LR 15 App Cas 19, Lord Macnaghten (albeitin dissent) said (at 35) that, in considering the meaning of a term such as"mines and minerals", the opinion of particular judges may be "a safer guidethan any definitions or illustrations to be found in dictionaries". No doubt ajudge will find it of assistance to know the meanings in which, as dictionariesshow, the words have been used: for an early example of resort todictionaries, see Matthew v Purchins (1608) Cro Jac 203; 79 ER 177 (thedictionary of Thomas. Thomasius not that of Robert Cowdrey). But courtsare not bound by such meanings: Grieves v Rawley (1852) 10 Hare 63 at 65;68 ER 840 at 841. (Provincial Insurance was recently applied by the Supreme Court of NSW in NBN Co Limited v Pipe Networks Pty Limited [2015] NSWSC 475 (at [91]), where Kunc J confirmed that "dictionaries are a starting point but not a substitute for the process of statutory interpretation"). 1. It is important that the search for the dictionary meaning of words does not distract from or, lest of all, undermine the task of statutory construction. Construction must begin with the consideration of the text itself, which may require consideration of the context (which includes purpose) both in immediately surrounding words and provisions and by reference to the language of the instrument viewed as a whole. 2. The approach taken by both parties to the construction of the Schedule was to fix attention upon the meaning of the word 'paramedic' within the Schedule (in the absence of a definition of that term in the WC Act or the WIM Act). Little attention was given to the whole text of the Schedule or the context in which the word 'paramedic' appeared. 3. The Schedule constitutes an exemption from the amendments brought about to the WC Act by the Amendment Act. That intention is conveyed by the whole of the Schedule but particularly the phrase "as if those amendments had not been enacted" which appears in the closing words of the Schedule "and the Workers Compensation Acts (and the regulations under those Acts) apply to and in respect of such an injury as if those amendments had not been enacted". As earlier discussed, that conclusion is supported by an examination of the Parliamentary debates. 4. The scope of the exemption is defined by the opening words of the Schedule which is expressed in the following terms: "The amendments made by the 2012 amending Act do not apply to or in respect of an injury received by a police officer, paramedic or fire fighter (before or after the commencement of this clause)" ('the clause'). 5. As the WC Act generally concerns persons under a contract for service who have received "a personal injury arising out of or in the course of employment" (see ss 4 and 2A of the WC Act and s 4 of the WIM Act), it must follow that the clause serves to exempt a particular class of worker from the reach of the Amendment Act which otherwise applies to all employees in NSW (with some limited but irrelevant exceptions). The specification of that class is achieved by the phrase "a police officer, paramedic or fire fighter" ('the phrase'). 6. The meaning of those words may be partially derived from their association with each other as discussed by Boland J in the AWU case. 7. In Lend Lease Real Estate Investments Ltd & Anor v GPT RE Ltd [2006] NSWCA 207 ('Lend Lease'), Spigelman CJ noted at [30]–[31]: 30 The general principle of the law of interpretation that the meaning of a word can be gathered from its associated words – noscitur a sociis – has a number of specific sub-principles with respect to the immediate textual context. The most frequently cited such sub-principle is the ejusdem generis rule. The relevant sub-principle for the present case is the maxim propounded by Lord Bacon: copulatio verborum indicat acceptationem in eodem sensu – the linking of words indicates that they should be understood in the same sense. As Lord Kenyon CJ once put it, where a word "stands with" other words it "must mean something analogous to them" (Evans v Stevens (1791) 4 TR 224; 100 ER 986 at 987. See also W J Byrne (ed) Broomes Legal Maxim (9th ed) Sweet and Maxwell, London (1924) pp373-374.) 31 However, as Lord Diplock put it in Letang v Cooper [1965] 1 QB 232 at 247: "The maxim noscitur a sociis is always a treacherous one unless you know the sosietas to which the socii belong." 32 There is no such difficulty here. Unless the expression "assumption of obligations" is confined to "alienation", most of the adjoining words would be otiose. The reading down of general words is one of the most common mechanisms applied in the course of legal interpretation. The Court should not give one word in an interrelated, overlapping list of expressions a meaning that is so broad as to be inconsistent with adjoining words or that renders those words irrelevant. 1. Here each occupation within the phrase has membership of and serves the provision of emergency services. The association of the terms denotes, therefore, that the legislature intended that the exception would apply to three principal emergency services in the State and, in particular, to the three classes of emergency services workers engaged in the provision of those services. 2. The use of the indefinite article "a" before the words "police officer, paramedic or fire fighter" grammatically indicates the membership of the nominated class, in this case a class of worker exempted from the Amendment Act. When read in the context of the clause, the phrase does not, grammatically, mean a 'single' worker in the class or 'some' workers in the class, but 'any' person whose occupation in the emergency services bears that nomenclature. Further, the article conditions each word in the phrase by directing attention to the particular designation of the nominated worker. 3. The indefinite article would normally be repeated before each coordinate noun in the phrase, but the drafter may, and in my view has, adopted a single article because the respective items make up one unit, class or concept: The Chicago Manual of Style (15th ed 2003, The University of Chicago Press) at 166; R W Burchfield, Fowler's Modern English Usage (3rd ed 1998, Oxford University Press) at 2 and W A Sabin, The Gregg Reference Manual: A Manual of Style, Grammar, Usage, and Formatting (10th ed 2004, McGraw-Hill) at 312. The article attaches, by implication, to each word in the phrase, but appears only at the beginning of the phrase in order to indicate the association of the words. 4. Thus, the use of the determiner "a" with respect to each worker nominated in the phrase has the effect, grammatically, of directing attention to a particular designation of worker in a manner that is distinct from alternate language which might suggest that the exemption only applied to certain characteristics or functional aspects of a person holding such an office or engagement. 5. When considered with the foregoing analysis and the immediate context in which the words 'a paramedic' are used (that is, the words of association) each word in the phrase concerns the designation of an officer engaged in the discharge of emergency services in New South Wales, such as a member of the Police Force or, in this case, appointment by the ASNSW (see NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1955-1956) 94 CLR 509 ('Blue-Metal Quarries') at 522 and Coleman v Power [2004] HCA 39; (2004) 209 ALR 182 at 177 and 181 as to reading a word in its immediate context). 6. That construction is consistent with the general intent of the workers compensation scheme as revealed by the definition of 'injury' in the WC Act. As the applicant submitted, the definition is not governed by whether a worker is performing particular duties at the time of the injury but rather whether the injury arises out of or in the course of employment. There is no indication in the text of the Schedule that the protection afforded should only extend to employee paramedics who are injured whilst performing operational duties or are rostered to perform the same. 7. The Award confirms that meaning. That instrument determines the classification of paramedics (and, to the extent earlier discussed, nomenclature of their appointments). The definition of 'paramedic' in the Award concerns only the appointment of an employee and the attendant qualifications for that position. 8. Further, there is nothing in the language used in the Schedule which would indicate that the Parliament intended that the words of the phrase should be given some unusual meaning or viewed as technical expressions or terms of art (see Barrett v Thurling (1984) 2 NSWLR 683 at 685). The above construction is also consistent with the current ordinary and natural meaning (see Blue-Metal Quarries at 514 per Kitto J; Lansell House Pty Ltd v Commissioner of Taxation [2010] FCA 329 at [57] and Mahoney JA in Provincial Insurance at 560) of the terms 'a police officer', 'a paramedic' and 'a firefighter' as persons appointed to a position of that kind having the requisite qualifications to discharge that role. Those positions are well-known in the community and, therefore, may be viewed as expressions about which there is a common understanding both as an occupation and role in the community. They are expressions used in ordinary parlance (see Korczynski v Wes Loftus Pty Ltd (1985) 62 ALR 225 at 232). 9. The applicant is correct to submit that the language of the Schedule, so far as it describes the group to whom the exemption from the Amendment Act applies, is absent any adjectival qualification of the kind argued for by the respondent. The language adopted by the legislature in the phrase (when read in its immediate context) exhibits no limitation (expressly or by implication) of the kind contended for by the respondents. The language denotes a particular known class or designation and does not suggest that the protection afforded by the Schedule may operate only upon the performance of particular duties by such officers, or, in a broader sense, engagement in an area of work such as policing. 10. The difficulty that conclusion represents for the respondents' contention is compounded by the construction of the Schedule sought by them vis-à-vis the performance of certain duties of an operational character. In particular, the expansion in their submissions of the scope of the Schedule to include paramedics rostered to perform operational duties, whilst understandable from an administrative point of view, clouds whether the distinction which is sought to be drawn by the respondents does, in fact, rely upon the performance of duties (and particularly emergency duties) as such. The notion that the Schedule captured paramedics who are rostered to perform work irrespective of whether those duties are discharged at the point of injury creates a degree of inconsistency which actively works against the contentions advanced by the respondents. In any event, the words of the provision ought to be given "their natural construction" without the importation of such a limitation where "no limit whatever is there expressed": R v Liverpool Justices (1883) 11 QBD 638 at 649. 11. As to reading the word 'operational' into the Schedule, as noted in Rudd (at [78]), such an approach would require satisfaction of the conditions prescribed by Lord Diplock in Wentworth Securities Ltd v Jones [1980] AC 74 at 105 (which, I note, were added to by Dawson J in his Honour's dissenting judgment in Mills v Meeking (1990) 169 CLR 214 at 235 and clarified by French CJ, Crennan and Bell JJ in Taylor v Owners – Strata Plan No 15564 [2014] HCA 9; (2014) 88 ALJR 473 ('Taylor v Owners')). 12. The first of Lord Diplock's conditions requires the identification of the precise purpose of the provision. The second requires satisfaction that the drafter and the Parliament inadvertently overlooked an eventuality that must be dealt with if the provision is to achieve its purpose. Third, the Court is required to identify the words that the legislature would have included in the provision had the deficiency been detected before its enactment. The additional requirement noted above is that the words being read into the provision "must be consistent with the wording otherwise adopted by the draftsman" (Mills v Meeking at 235). 13. In the present circumstances, the identified purpose of the provision does not lead to a conclusion that the drafter and the Parliament inadvertently overlooked an eventuality which would prevent the purpose of the provision being achieved if it were construed textually. In fact, as I will find below, the purpose of the Schedule is achieved by the literal construction of the provision. In any event, the third requirement described above is only met where there is certainty that the word sought to be read in is the word which the legislature would have intended to include. In the present case, contrary to the submissions of the respondents, there is no indication that the word 'operational' is necessary to effectuate the purposes of the Schedule and, as discussed earlier, the meaning of the word in the context of the respondents' submissions is itself attended by some uncertainty. Further, the inclusion of that word would be inconsistent with the balance of the provision (being that neither of the other two classes of worker are qualified in such a manner). 14. In the absence of the satisfaction of those conditions, to alter the text in the manner proposed would "be too far reaching and verging on 'judicial legislation'", contrary to Taylor v Owners at [40] (see Rudd at [80]). 15. A further difficulty with the respondents' acceptance that the word 'operational' would need to be read into the phrase is that, consistently with the observations of Spigelman CJ in Lend Lease at [32], the same restriction would need to operate with respect to 'police officer' and 'firefighter'. No attempt was made to describe just how such a limitation may, if at all, operate with respect to those employees within the context of the emergency services agencies with which they are engaged. For example, it is difficult to conceive how reading the word 'operational' before "police officer" would be a permissible construction in light of s 11 of the Police Act. 16. Further, the narrow construction proposed by the respondents is inconsistent with the beneficial nature of the Schedule. The Schedule acts as a savings provision to the legislation and is designed to shield the class of workers in question from the provisions of the Amendment Act which would otherwise significantly limit their entitlements under the WC Act. Accordingly, the construction of the Schedule should be liberal rather than "literal or technical" (see Norrie at [73]), resulting in the phrase being given the broadest meaning consistent with the text of the provision (see Chau v Visy Board Pty Ltd [2012] NSWIRComm 101 at [41]; Bird at 9 and Nilant v Macchia (2000) 104 FCR 238 at 247). The broadest meaning of the phrase articulated in these proceedings is one which treats the Schedule as operating by virtue of the classification of each nominated officer. The respondents' contentions would result in a narrower meaning of the phrase such that employees, so classified, would only receive the protection of the Schedule when injured during the performance of operational duties (or being rostered to perform the same). 17. This construction does not require, as the respondents alluded, an assessment of what the 'benefit' to an injured worker would be but rather, a liberal interpretation of the nominated category of worker so as not to unduly limit or restrict the benefit afforded by the Schedule. Nor does it conflict with the undoubtedly correct submission made by the respondents that a liberal construction cannot alter the meaning of the text, as the construction is consistent, in my view, with the language of the provision. 18. This discussion naturally leads to the issue of the purpose of the provision upon which the respondents placed particular emphasis. 19. It is important to commence the discussion of purpose by briefly revisiting the authority in Certain Lloyds where French CJ and Hayne J observed that the "determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted" (at [25]). Their Honours also warned against the second, and related, danger of making an a priori assumption about the purpose of the statute derived from what is seen to be the "desired or desirable reach or operation of the relevant provisions" (at [26]). 20. In my view, the approach contended for by the respondents trespasses into the forbidden field about which their Honour's gave warning. It is predicated upon what is, as I have found, a view of the purpose of the provision which is not supported by the text or context of the provision. The respondents' contention relied, contrary to authority, upon an assumption as to the intention of the legislature in enacting the Schedule (partially derived from a misunderstanding of the comments of Mr Shoebridge), namely, that the purpose of the Schedule was to protect only those paramedics who were engaged in operational duties especially in emergency settings. 21. The purpose of the Schedule may be identified in three ways: "an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials" (Certain Lloyds at [25]). 22. Although an express statement of purpose appears in s 3 of the WIM Act, that provision is too broad to assist in determining the purpose of the Schedule. 23. The text and structure of the provision revealed the purpose and mischief sought to be remedied in the manner described above. 24. The extrinsic material in the evidence in these proceedings did not, as I have explained, illuminate the purpose of the provision beyond that which is evident in its text and structure. The comments of Mr Shoebridge could not and do not necessitate a departure from that view. 25. The purpose of the Schedule and the mischief sought to be remedied, so described, does not, therefore, support the construction contended for by the respondents and, in fact, may be readily attained by the construction of the term 'a paramedic' by reference to an employee's appointment in that position (which is consistent with my analysis of the language of the provision). 26. The purpose of the Schedule is to excise from the operation of the Amendment Act three key classes of emergency services personnel appointed to the service of the State in positions holding a title well-known to the community. There is nothing in the savings provision erected through the Schedule which would indicate an intention in the legislature to remove the benefit conferred by the Schedule in circumstances where those classes of emergency worker were temporarily removed (by secondment or otherwise) from the performance of front-line duties. In one sense, this very consideration is recognised by the respondents' acceptance that the provision would reach a paramedic rostered to perform paramedic duties whether such duties were performed or not. The legislature intended to protect the workers in each agency performing emergency services, a class that was readily determined by their appointments by such agencies who controlled entry by the setting of requisite qualifications for each position and appointment process. 27. Whilst the emergency and lifesaving duties of this class of worker will no doubt have contributed to the appetite of the legislature to provide the exemption in the Schedule, it does not follow, and the text of the Schedule does not support, a conclusion that the legislature constructed a savings provision so as to only shield that class of worker when performing those duties for the understandable reason, as is clear from the evidence in this case, that the members of the subject classes may not, in the ordinary performance of their duties, from time to time, be engaged in the performance of front-line or emergency duties per se (a circumstance that may be readily hypothesised to extend to police officers and firefighters). 28. The applicant, in her temporary position as a Health Advisor, fell within the field covered by the Schedule whilstsoever she maintained her appointment and classification as a 'paramedic' in the employment of the first respondent within the service of the ASNSW. That the ASNSW chose to maintain that appointment whilst the applicant was under secondment for various administrative reasons does not undermine the efficacy of that conclusion. The legislative intention must be derived from the text, context and purpose of the subject provision. In the final analysis, the conclusion I have reached, in that respect, is broadly consistent with the obiter expressed by Deputy President Roche in Stockwell and Boland J in the AWU case (at [97]). 29. Finally, I would observe that this approach to construction would not, as the respondents contended, excessively broaden the scope of the provision beyond the legislative intention. The Schedule covers only those who are appointed or designated to a paramedic position at the behest of the ASNSW for the first respondent. 30. In any event, upon the above analysis, it is not clear that there is a significant gap between persons falling within the Schedule in accordance with this construction and those performing or rostered to perform operational duties. There is no evidence, in that respect, to demonstrate why inclusion of the former category excessively broadens the term 'paramedic' beyond what the respondents' coin operational paramedics. The reference by the respondents to Educators and those working in the Performance Improvement Team or Professional Standards Unit does not advance that situation. Conclusion 1. The declaratory jurisdiction of the Court under s 154 of the IR Act is discretionary: see ASNSW v HSU at [7]-[8] and PSA v SoT at [168]-[181]. 2. I am disposed to refuse the first declaration sought (to the extent that it was pursued) for the reasons earlier given. 3. As noted above, the third declaration in the amended application was not pressed. 4. As to the second declaration sought, I find that, upon the proper construction of the Schedule, the meaning of the term 'paramedic' in the phrase in the Schedule denotes an employee of the first respondent within the service of the ASNSW who is classified as a paramedic by virtue of the operation of the Award (and, by necessary connection, is appointed to an approved position within the ASNSW). As I have found, the applicant was such an employee at the time of her injury and, hence, the exemption from the Amendment Act under the Schedule applied to her. For the reasons given above, that conclusion is not displaced, in my view, by the fact that the applicant was not performing or rostered to perform operational paramedic duties (as defined by the respondents) at that time. 5. Thus, the applicant was a paramedic at the time of her injury within the meaning and for the purposes of the Schedule, irrespective of her secondment to the role of Health Advisor. 6. The parties made no submissions as to the proper exercise of the discretion with respect to the second declaration. It may be assumed that reflects the fact that, in contrast to the first and third declarations discussed above, a declaratory order broadly in the terms of the second declaration would plainly resolve the legal controversy between the parties in the present proceedings and have significant utility in that respect. 7. It will be recalled that no jurisdictional issues were raised as to the second declaration. 8. That effective concession by the respondents (given the non-pursuit of issues of that character after amendment to the original application), whilst not binding on the Court, is, having regard to the controversy agitated before the Court, in my view, sound. In light of those concessions, I will only briefly elaborate upon this observation. 9. Section 154 of the IR Act provides that the Court may make declarations in relation to "a matter which the Commission (however constituted) has jurisdiction". 10. In PSA v SoT the Court stated (at [157]–[160]) as follows: 157 Section 154 is constrained by the words "in relation to a matter in which the Commission (however constituted) has jurisdiction". The phrase "in relation to" is wide but imports a requirement for a relationship between subject matters: PMT Partners Pty Ltd (In Liq) v Australian National Parks and Wildlife Service [1995] HCA 36; (1995) 184 CLR 301 at 330 - 331. In the context of s 154, the connection or association is between the subject matter of the proceedings for declaratory relief and "a matter" over which the Commission and the Court has jurisdiction. However, the scope of the jurisdiction is, nonetheless, wide as "the matter" referred to in s 154 is not dependent upon the existence of extant proceedings. The requisite connection is established if the subject matter of the declaratory proceedings falls within the powers generally available under the Act to the Commission or Court. 158 Hungerford J elucidated the breadth of this provision in Ford v SAS Trustee Corporation [2000] NSWIRComm 92; (2000) 98 IR 444 at [76]: My conclusions in favour of there being jurisdiction to make the declarations sought may be stated relatively shortly. The fundamental nature of the declaratory power in s 154 of the Industrial Relations Act is, in the opinion I hold, based on the existence of a matter about which the Commission (either as the Commission or sitting as the Court) has jurisdiction and even though no consequential relief is or could be claimed. In other words, a declaration of right may be made once there be identified a matter otherwise within the Commission's or the Court's jurisdiction, regardless whether any proceedings exist as to that matter, provided the declaration as sought relates to it. In Atlantis Relocations, the majority of the Full Bench (Glynn and Maidment JJ, Marks J concurring) put it, in a manner I would respectfully adopt, in this way (at p 4) : The declaratory jurisdiction arises "in relation to a matter" in which the Commission has jurisdiction whether or not any consequential relief is or could be claimed (s 154(1)). The declaratory power is therefore not contingent upon the existence of proceedings which are otherwise within jurisdiction as the power arises in relation to a matter as opposed to proceedings. 159 Noting that the respondent has raised a particular issue as to the jurisdiction to grant declaratory relief which will require further assessment, the subject matter of the present proceedings is, in my view, otherwise plainly one over which the Court possesses jurisdiction under s 154 of the Act. 160 This is because the subject matter of the present controversy is clearly a matter over which the Commission, whether constituted as the Commission or as the Industrial Court, has jurisdiction. I accept, in this respect, the following submissions by the PSA: 11. The Commission's jurisdiction includes the capacity to deal with "industrial disputes" (s 130) which are a "dispute about an industrial matter" or make awards setting "conditions of employment" (s 10) including about "industrial matters". The Commission (when constituted as the Industrial Court) has jurisdiction with respect to the enforcement of industrial instruments, including awards, by way of the imposition of civil penalties (s 357), recovery of underpayments (ss 358 and 365) or injunctions to restrain from further contraventions (s 359). 12. A declaration as to the interpretation or application of an award of the Commission is plainly related to a "matter" within the jurisdiction of the Commission constituted both as the Commission and the Industrial Court susceptible to declaratory orders under s 154 of the Act. 1. Here, the controversy over the scope and operation of the Award and the related question of whether the applicant was appointed to a position of paramedic at the time of her injury was central to the resolution of the controversy to which the second declaration relates. That 'matter' is amenable to the jurisdiction of the Commission as a matter concerning the interpretation and application of an Award (and to the Court in the making of a declaration as to the same) and the enforcement of industrial instruments. An interesting question (which I do not resolve) would be whether the present controversy would be caught by the general definition of an 'industrial matter' in s 6(1) of the IR Act. 2. In the circumstances, it is appropriate, in my view, to exercise the discretion reposed in this Court pursuant to s 154 of the IR Act to make a declaratory order consistent with the second declaration. However, I will give an opportunity to the parties to consider the final form of that order to be made having regard to the terms of this judgment. In particular, there would appear to be no reason, in light of the issues raised in the proceedings, why the order should temporally extend beyond a specification of the date of injury of the applicant. 3. The applicant is to file and serve draft orders reflecting the terms of this decision and, if appropriate, any related submissions (as to the form of the orders) within 14 days. The respondents shall have an opportunity to file and serve any submissions in reply as to the form of the orders within 14 days of the service of those draft orders and any submissions relied upon by the applicant relating thereto. In accordance with the same timetable, the parties shall separately file and serve any application as to costs and submissions as to the same. 4. The disposition of orders and costs will be dealt with on the papers unless the Court forms the view that a hearing will be necessary in light of the submissions received or there is an application from a party for the matter to be listed for hearing as to either the form of the orders or costs (in which case the application should specify the subject matter about which the hearing is sought). ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 February 2016