HIGH COURT OF AUSTRALIA
GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
TELSTRA CORPORATION LIMITED APPELLANT
AND
WORTHING & ANOR RESPONDENTS
Telstra Corporation Limited v Worthing (S68-1998) [1999] HCA 12
24 March 1999
ORDER
Appeal allowed.
Order 3 of the orders of the Court of Appeal entered on 31 March 1998 be set aside and in lieu thereof order that the appeal to that Court be allowed, Order 1 made by Truss CCJ on 10 July 1997 be set aside, and the application for determination dated 10 September 1996 be struck out for want of jurisdiction.
The appellant pay the first respondent's costs of the appeal to this Court.
On appeal from the Supreme Court of New South Wales
Representation:
A Robertson SC with G M Watson for the appellant (instructed by Sparke Helmore)
A J Leslie QC with J H Pearce for the first respondent (instructed by Gray & Ryan)
No appearance for the second respondent
2.
Interveners:
D M J Bennett QC, Solicitor-General for the Commonwealth with E Willheim and D A Page intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
M G Sexton SC, Solicitor-General for the State of New South Wales with S J Gageler intervening on behalf of the Attorney-General of the State of New South Wales (instructed by Crown Solicitor for New South Wales)
B W Walker SC with G M Watson intervening on behalf of the Australian Postal Corporation (instructed by Sparke Helmore)
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
HIGH COURT OF AUSTRALIA
GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
ATTORNEY-GENERAL OF THE COMMONWEALTH APPELLANT
AND
TELSTRA CORPORATION LIMITED & ANOR RESPONDENTS
Attorney-General v Telstra Corporation Limited
24 March 1999
S69/1998
ORDER
Appeal allowed.
Order 3 of the orders of the Court of Appeal entered on 31 March 1998 be set aside and in lieu thereof order that the appeal to that Court be allowed, Order 1 made by Truss CCJ on 10 July 1997 be set aside, and the application for determination dated 10 September 1996 be struck out for want of jurisdiction.
The appellant pay the second respondent's costs of the appeal to this Court.
On appeal from the Supreme Court of New South Wales
Representation:
D M J Bennett QC, Solicitor-General for the Commonwealth with E Willheim and D A Page for the appellant (instructed by Australian Government Solicitor)
A Robertson SC with G M Watson for the first respondent (instructed by Sparke Helmore)
2.
A J Leslie QC with J H Pearce for the second respondent (instructed by Gray & Ryan)
Interveners:
M G Sexton SC, Solicitor-General for the State of New South Wales with S J Gageler intervening on behalf of the Attorney-General of the State of New South Wales (instructed by Crown Solicitor for New South Wales)
B W Walker SC with G M Watson intervening on behalf of the Australian Postal Corporation (instructed by Sparke Helmore)
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Telstra Corporation Limited v Worthing & Anor
Constitutional law – Inconsistency – Whether Safety, Rehabilitation and Compensation Act 1988 (Cth) is inconsistent with Workers Compensation Act 1987 (NSW).
Statutes – Construction – Whether Workers' Compensation Act 1926 (NSW) and Workers Compensation Act 1987 (NSW) apply to Australian Telecommunications Commission.
Courts and tribunals – Compensation Court of New South Wales – Whether matter arises under or involves the interpretation of the Constitution and is an exercise of federal jurisdiction.
Words and phrases – "employer".
The Constitution, s 109.
Safety, Rehabilitation and Compensation Act 1988 (Cth).
Judiciary Act 1903 (Cth), s 39.
Workers' Compensation Act 1926 (NSW).
Workers Compensation Act 1987 (NSW).
GLEESON CJ, GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ. These two appeals were heard together. Each appeal is brought from the judgment and orders of the New South Wales Court of Appeal in Telstra Corporation Ltd v Worthing[1]. The Court of Appeal (Cole, Beazley and Stein JJA) dismissed an appeal by Telstra Corporation Ltd ("Telstra"). Telstra had appealed against the dismissal by a judge (Truss CCJ) of the Compensation Court of New South Wales ("the Compensation Court") of its motion that an application against it by Mr Worthing be struck out for want of jurisdiction.
[1](1997) 42 NSWLR 655.
On 11 September 1996, Mr Worthing filed an application for determination of his claim for compensation under the Workers Compensation Act 1987 (NSW) ("the 1987 State Act"). Mr Worthing alleged that he sustained injury to his back whilst employed as a linesman by Telstra or its predecessors on 20 May 1986 ("the 1986 injury"), 28 April 1988 ("the 1988 injury") and 2 June 1993 ("the 1993 injury"). He claimed weekly payments from 29 September 1994 pursuant to ss 36 and 37 of the 1987 State Act, lump sums under ss 66 and 67 for permanent impairment of his back, together with medical expenses pursuant to s 60 and interest pursuant to s 113.
Telstra's strike‑out motion was founded upon the submissions that (i) neither the 1987 State Act nor its predecessor, the Workers' Compensation Act 1926 (NSW) ("the 1926 State Act"), upon their proper construction, extended to cover employees of Telstra or its predecessors such as Mr Worthing and that (ii) alternatively, if the New South Wales legislation did apply to Mr Worthing, it conflicted with laws of the Commonwealth and, by reason of the operation of s 109 of the Constitution, was invalid to the extent of that inconsistency.
The Compensation Court is constituted as a court of record by s 4 of the Compensation Court Act 1984 (NSW) ("the Compensation Court Act"). Section 15 of that Act provides that the Compensation Court shall have the jurisdiction vested in it by or under the Compensation Court Act or "any other Act". This identifies New South Wales legislation[2]. Section 107 of the 1987 State Act[3] conferred exclusive jurisdiction on the Compensation Court to determine Mr Worthing's application. However, the reliance by Telstra, in its strike‑out motion, upon the operation of s 109 of the Constitution meant that, at least in dealing with that motion, the Compensation Court was exercising federal jurisdiction invested by s 39 of the Judiciary Act 1903 (Cth) ("the Judiciary Act") with respect to a matter arising under or involving the interpretation of the Constitution[4]. The Compensation Court, identified as such, was joined as a respondent in the Court of Appeal and to Telstra's appeal to this Court. No point is taken as to the propriety of such a course. That Court submitted to the orders of this Court and took no part in the appeal.
[2]Interpretation Act 1987 (NSW), s 65.
[3]Section 107 (as a component of Pt 4 (ss 87D‑148L)) was repealed by s 3 and Sched 1 Item 63 of the Workers Compensation Legislation Amendment Act 1998 (NSW) ("the 1998 Amendment Act"). The exclusive jurisdiction of the Compensation Court to deal with applications of the nature of Mr Worthing's application is now provided by s 105 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("the Workplace Injury Management Act"). These changes do not affect the outcome of the present appeals.
[4]Constitution, s 76(i). A matter which turns upon the application of s 109 of the Constitution arises under the Constitution or involves its interpretation: Ex parte McLean (1930) 43 CLR 472 at 482 per Dixon J.
In the Court of Appeal, the Attorney‑General of the Commonwealth exercised the right of intervention given by s 78A(1) of the Judiciary Act[5]. The consequence was that s 78A(3) operated to treat the Attorney‑General as a party to the proceeding in the Court of Appeal, for the purposes of the institution and prosecution of an appeal from the judgment given by the Court of Appeal. Hence, the two appeals to this Court by Telstra and by the Attorney‑General respectively. Their submissions in this Court were broadly along the same lines, with one qualification. This is that the Attorney‑General, but not Telstra, pressed in submissions that, as a matter of construction, neither Telstra nor its predecessors were employers to which the State legislation applied. It is convenient to turn now to the history of the relevant legislation and the antecedents of Telstra.
[5]The Attorney‑General of New South Wales also intervened under s 78A(1) and he again intervened in this Court.
The legislation
At the time of the 1986 injury, the 1926 State Act and the Compensation (Commonwealth Government Employees) Act 1971 (Cth) ("the 1971 Federal Act") were in force. By the time of the 1988 injury, the operation of the 1987 State Act had commenced but the 1971 Federal Act was still in force. Mr Worthing claims to have sustained the 1993 injury on 2 June 1993. The relevant State legislation then was the 1987 State Act and the relevant federal legislation was the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the 1988 Federal Act").
Mr Worthing's application to the Compensation Court thus sought a determination in respect of injuries allegedly sustained before and after the commencement of the 1987 State Act. Schedule 6 to the 1987 State Act contains savings and transitional provisions. Clause 1 of Pt 2 of Sched 6 provides that, subject to that Schedule, Pt 2 of the 1987 State Act applies whether the injury was received before or after the commencement of Pt 2, which occurred on 30 June 1987. Part 2 (ss 9‑24) contains provisions imposing liability upon employers for injuries received by workers. The result is that the 1987 State Act operates upon facts and events which occurred before its commencement. However, it does not fix a party with liability as an employer in respect of earlier events if that party did not then fall within the definition of employer under the 1926 State Act[6].
[6]Commissioner for Railways (Q) v Peters (1991) 24 NSWLR 407.
At the time of the 1986 injury and the 1988 injury, Mr Worthing's employer was the Australian Telecommunications Commission ("the Commission"). This body was established by s 4 of the Telecommunications Act 1975 (Cth) ("the Telecommunications Act"). It was a body corporate (s 21(1)(a)) but consisted of Commissioners appointed by the Governor‑General (s 22) and was not subject to any requirement, obligation, liability, penalty or disability under a law of a State to which the Commonwealth itself was not subject (s 21(3)).
Amendments made to the Telecommunications Act by s 6 of the Telecommunications Amendment Act 1988 (Cth) preserved and continued the Commission as a body corporate under the name Australian Telecommunications Corporation. Later legislation[7] continued this body under the name "Telecom". All of the property, rights and liabilities (actual, contingent and prospective) of Telecom were, by s 11 of the Australian and Overseas Telecommunications Corporation Act 1991 (Cth) ("the AOTC Act"), vested in a company incorporated under the Corporations Law of the Australian Capital Territory under the name Australian and Overseas Telecommunications Corporation Limited ("AOTC"). AOTC was registered under the Australian Capital Territory law on 6 November 1991 as an unlisted public company limited by shares. Section 26 of the AOTC Act provided that, for the purposes of Commonwealth, State and Territory laws, AOTC was not to be taken as incorporated for a purpose of the Commonwealth, or as being a public authority, instrumentality or agency of the Crown or as entitled to any immunity or privilege of the Commonwealth. On 13 April 1993, AOTC was renamed Telstra Corporation Limited. Finally, the Transport and Communications Legislation Amendment Act 1994 (Cth) amended the title of the AOTC Act to Telstra Corporation Act 1991 (Cth) ("the Telstra Act").
[7]Sections 12 and 13 of the Australian Telecommunications Corporation Act 1989 (Cth) ("the ATC Act"), which commenced 1 July 1989.
The result was that, at the time of the 1993 injury, Mr Worthing was employed by Telstra, whilst in 1986 and 1988 his employer had been the Commission. By successive legislative provisions, any relevant liability of that body to Mr Worthing had become the liability of Telstra[8]. However, there is no statutory conferral upon Telstra of immunity corresponding to that conferred upon the Commission by s 21(3) of the Telecommunications Act. Section 26 of the Telstra Act is explicitly to the contrary.
[8]The Telecommunications Act, ss 4, 4A (inserted by Telecommunications Amendment Act 1988 (Cth), s 6); the ATC Act, ss 12, 13; the Telstra Act, s 11(b).
The 1971 Federal Act made provision for workers' compensation for employees of the Commonwealth and for employees of certain statutory authorities. The 1988 Federal Act makes provision for workers' compensation and other benefits for Commonwealth employees and for employees of certain statutory and other corporations. The Commission was an authority to which the 1971 Federal Act applied (s 7(1)) as a "prescribed authority" within the meaning of the definition in s 5(1). It also was an "administering authority" under Pt VIII of the 1988 Federal Act. Part VIII was repealed by the Commonwealth Employment (Miscellaneous Amendments) Act 1992 (Cth) ("the 1992 Act"). At the time Mr Worthing made his application to the Compensation Court, Telstra held a class 3 licence under Pt VIIIA of the 1988 Federal Act[9]. Part VIIIA was inserted by the 1992 Act to provide for the licensing of certain Commonwealth authorities to accept liability for payment of claims and to determine claims.
[9]Since 1 July 1997, Telstra has held a class 3 licence under Pt VIIIB. This Part was added by the Commonwealth Employees' Rehabilitation and Compensation Amendment Act 1992 (Cth) ("the 1992 Amendment Act") to enable certain "corporations", not being Commonwealth authorities, to seek to have the 1988 Federal Act apply in relation to their employees.
Was the Commission an employer?
It is appropriate to begin a consideration of the submissions with those of the Attorney‑General of the Commonwealth respecting the liability of the Commission for the 1986 injury and the 1988 injury. The submission is that, although the 1926 State Act was in force in 1986 and the 1987 State Act was in force in 1988, as a matter of construction, those statutes did not apply to the Commission as an employer and further, by virtue of s 21(3) of the Telecommunications Act, the Commission was not subject to any liability under a law of the State to which the Commonwealth was not subject. It will be necessary to consider the application of s 109 of the Constitution to which a provision such as s 21(3) gives rise[10] only to the extent to which the Attorney‑General's first submission, as to construction, is not accepted.
[10]See Australian Coastal Shipping Commission v O'Reilly (1962) 107 CLR 46 at 53, 58, 61, 71; Western Australia v The Commonwealth (Native Title Act Case) (1995) 183 CLR 373 at 465‑468.
The Attorney‑General challenges the holding by Cole JA in the Court of Appeal that, as a matter of construction, the Commission was an "employer" within the 1987 State Act[11]. The Attorney‑General points out that, in reaching that conclusion, the Court of Appeal did not consider what might follow for the present case from the reasoning in its earlier decision, Russo v World Services and Constructions Pty Ltd[12].
[11](1997) 42 NSWLR 655 at 661.
[12][1979] 1 NSWLR 330.
In that case, the question was whether the Commonwealth was an "employer" within the meaning of the 1926 State Act. It was held that it was not. Hope JA pointed out that there were no express words in the statute appropriate to bind the Crown in right of the Commonwealth[13] and Mahoney JA observed that, whilst the definition of "employer" included certain government departments and bodies, it did so only in respect of emanations of the State of New South Wales[14]. Mahoney JA drew from this confirmation of the conclusion that the intention was not to apply the legislation to the Commonwealth[15]. Subsequently, in Bolwell v Australian Telecommunications Commission[16], the Federal Court analysed the provisions of the Telecommunications Act which disclosed a very high degree of governmental control. The consequence was that the Commission was not subjected to certain prohibitions imposed by s 5 of the Conciliation and Arbitration Act 1904 (Cth).
[13][1979] 1 NSWLR 330 at 334.
[14][1979] 1 NSWLR 330 at 335.
[15][1979] 1 NSWLR 330 at 335.
[16](1982) 61 FLR 154 at 158‑160; 42 ALR 235 at 238‑240.
The 1987 State Act, unlike its predecessor, contains an express statement (s 6(1)) that it "binds the Crown, not only in right of New South Wales but also, so far as the legislative power of Parliament permits, in all its other capacities". Such a provision may be effective at least to apply the 1987 State Act to employees of another State who are injured in New South Wales[17]. However, the question remains whether the class upon which the 1987 State Act imposes duties or liabilities, and which is identified by the term "employer", is to be construed by reason of s 6(1) as including, in respect of the Commonwealth, more than those exercising the executive power of the Commonwealth provided for in s 61 of the Constitution. The Commission, whose powers and duties were founded in statute, did not exercise the executive power of the Commonwealth[18]. This is so, even though[19] the Commission would have been liable to suit under s 75(iii) of the Constitution as the Commonwealth or a person being sued on behalf of the Commonwealth[20].
[17]See Commissioner for Railways (Q) v Peters (1991) 24 NSWLR 407 at 441, 448‑449; State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189 CLR 253 at 293.
[18]Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410 at 426‑427, 458‑460, 470‑472.
[19]Maguire v Simpson (1977) 139 CLR 362 at 406; Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410 at 458.
[20]See Inglis v Commonwealth Trading Bank of Australia (1969) 119 CLR 334 at 336, 337‑338, 342; Maguire v Simpson (1997) 139 CLR 362 at 397‑398, 405‑406, 407; Crouch v Commissioner for Railways (Q) (1985) 159 CLR 22 at 30‑31, 41‑42; State Bank of NSW v Commonwealth Savings Bank of Australia (1986) 161 CLR 639 at 649‑652; State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189 CLR 253 at 282‑285 (in relation to liability to suit under s 75(iv) of the Constitution).
Further, the definition in s 3(1) of the 1987 State Act of "employer" at all relevant times[21] has made specific provision for the inclusion therein of a "Government employer". That phrase in turn has been defined in s 3(1) at all relevant times as meaning no more than "the Crown or any department, person or body exercising executive or administrative functions on behalf of the Government of the State". This may suggest, as Mahoney JA pointed out with respect to the corresponding provision in the 1926 State Act[22], that emanations of other bodies politic, State or federal, are not to be classed as employers for the 1987 State Act.
[21]The definitions of "employer" and "Government employer" were repealed by s 3 and Sched 1 Item 3 of the 1998 Amendment Act. Similar definitions now appear in s 4(1) of the Workplace Injury Management Act.
[22]Russo v World Services and Constructions Pty Ltd [1979] 1 NSWLR 330 at 335.
However, there remains the fundamental difficulty in the Attorney‑General's submission, namely that the Commission fell within the meaning of the definition of "employer", both in s 6(1) of the 1926 State Act and s 3(1) of the 1987 State Act. Both definitions were expressed to include "any body of persons, corporate or unincorporate" and, whether the Commission be so regarded, there was nothing in the definitions which, as Cole JA put it in the Court of Appeal, derogated "from simply applying the normal understanding of the expression 'employer' as referring to a person or body which employs people".[23] Further, the issue in Russo v World Services and Constructions Pty Ltd[24] was whether the Commonwealth itself, being the Department of Defence (Navy), was an employer for the purposes of the 1926 State Act whereas the Commission derives its powers and duties from its statute.
[23](1997) 42 NSWLR 655 at 661.
[24][1979] 1 NSWLR 330.
The Court should reject the submission that, as a matter of construction, the 1926 State Act and the 1987 State Act did not in their terms apply to the Commission as an employer.
Therefore, it is necessary to consider the submission based upon s 21(3) of the Telecommunications Act. The effect of that provision is that the Commission was not subject to any liability under either State statute to which the Commonwealth was not subjected.
Russo v World Services and Constructions Pty Ltd was not concerned with a body such as the Commission, but it did establish that the Commonwealth itself was not bound by the 1926 State Act. The correctness of that decision was not challenged.
As to the 1987 State Act, it contains the express statement in s 6(1), as to the Crown being bound in all its other capacities, which has been set out earlier in these reasons. However, a central provision of the legislative scheme established by the 1987 State Act is the requirement, under the sanction of a penalty, that an employer, other than a self‑insurer, obtain and maintain in force a policy of insurance which complies with the requirements of the legislation (s 155). Further, a "self‑insurer" who holds a licence granted, as the 1987 State Act originally stood, by the State Compensation Board constituted thereunder[25], was obliged, under penalty, to maintain with the New South Wales Treasurer a deposit in an amount determined by that Board (s 213).
[25]Replaced by the WorkCover Authority of New South Wales constituted under the WorkCover Administration Act 1989 (NSW).
It will require the clearest indication of a legislative purpose to demonstrate that these penal provisions attach to the Commonwealth[26]. No such indication is to be seen in the 1987 State Act. To the contrary, s 6(2) states that nothing in that statute renders "the Crown" liable to be prosecuted for any offence. These penal provisions are central to the structure upon which the regulatory scheme established by the State legislation rests.
[26]Cain v Doyle (1946) 72 CLR 409 at 425; State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189 CLR 253 at 270, 277, 294; Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410 at 427, 472.
We conclude that the liabilities under the 1987 State Act which are at stake in the present case are not liabilities to which the Commonwealth is subjected. This means that the operation of s 21(3) of the Telecommunications Act is attracted.
Section 21(3) is to be construed as a declaration of legislative purpose that the law of the Commonwealth shall operate exclusively of State law on the topic. As in Australian Coastal Shipping Commission v O'Reilly[27], s 109 of the Constitution then operates upon the State law in question.
[27](1962) 107 CLR 46.
The overall result with respect to the 1986 injury and the 1988 injury is that the State legislation had no application to the Commission. That being so, there was no relevant liability which passed to Telstra under the successive Commonwealth legislative provisions to which reference has been made.
The 1993 injury
There remains the 1993 injury, sustained whilst Mr Worthing was employed by Telstra. Neither appellant submits that, with respect to that claim, Telstra was other than an employer within the meaning of the 1987 State Act which bore the liabilities for injuries received by workers as detailed in Pt 2 of that statute. Here again, the operation of s 109 of the Constitution is decisive.
The applicable principles are well settled. Cases still arise where one law requires what the other forbids. It was held in Wallis v Downard‑Pickford (North Queensland) Pty Ltd[28] that a State law which incorporated into certain contracts a term which a law of the Commonwealth forbad was invalid. However, it is clearly established that there may be inconsistency within the meaning of s 109 although it is possible to obey both the Commonwealth law and the State law[29]. Further, there will be what Barwick CJ identified as "direct collision" where the State law, if allowed to operate, would impose an obligation greater than that for which the federal law has provided[30]. Thus, in Australian Mutual Provident Society v Goulden, in a joint judgment, the Court determined the issue before it by stating that the provision of the State law in question "would qualify, impair and, in a significant respect, negate the essential legislative scheme of the Commonwealth Life Insurance Act"[31]. A different result obtains if the Commonwealth law operates within the setting of other laws so that it is supplementary to or cumulative upon the State law in question[32]. But that is not this case.
[28](1994) 179 CLR 388 at 398.
[29]Viskauskas v Niland (1983) 153 CLR 280 at 291‑292.
[30]Blackley v Devondale Cream (Vic) Pty Ltd (1968) 117 CLR 253 at 258‑259; see also at 270 per Taylor J, 272 per Menzies J; Australian Broadcasting Commission v Industrial Court (SA) (1977) 138 CLR 399 at 406; Dao v Australian Postal Commission (1987) 162 CLR 317 at 335, 338‑339.
[31](1986) 160 CLR 330 at 339.
[32]Ex parte McLean (1930) 43 CLR 472 at 483; Commercial Radio Coffs Harbour v Fuller (1986) 161 CLR 47 at 57‑58.
In Victoria v The Commonwealth, Dixon J stated two propositions which are presently material. The first was[33]:
"When a State law, if valid, would alter, impair or detract from the operation of a law of the Commonwealth Parliament, then to that extent it is invalid."
The second, which followed immediately in the same passage, was:
"Moreover, if it appears from the terms, the nature or the subject matter of a Federal enactment that it was intended as a complete statement of the law governing a particular matter or set of rights and duties, then for a State law to regulate or apply to the same matter or relation is regarded as a detraction from the full operation of the Commonwealth law and so as inconsistent."
The second proposition may apply in a given case where the first does not, yet, contrary to the approach taken in the Court of Appeal, if the first proposition applies, then s 109 of the Constitution operates even if, and without the occasion to consider whether, the second proposition applies.
[33](1937) 58 CLR 618 at 630.
In the Court of Appeal, Cole JA, who gave the leading judgment, considered the provisions of State law under which Mr Worthing claimed compensation, together with the relative provisions under federal law. His Honour began the analysis by reference to the claim brought pursuant to ss 36 and 37 of the 1987 State Act for total continuing incapacity from 29 April 1994. Having referred to the provisions of the 1987 State Act, his Honour continued[34]:
"By that Act the claimant, assuming he established his case, would be entitled to compensation at a rate equivalent to his current weekly wage for the first 26 weeks, such current weekly wage being determined in accordance with s 42, and thereafter an amount equivalent to 90 per cent of the worker's average weekly earnings subject to the matters set forth in s 37. In contrast, the compensation payable under the [1988 Federal Act] pursuant to s 19 is at a rate for the first 45 weeks calculated in accordance with the formula set out in s 19(2), which relates to the employee's normal weekly earnings, and after that 45 weeks at a rate calculated in accordance with s 19(3). The amounts of each weekly payment and the periods of each category of payment are different under the two Acts. Further, in consequence of s 36 and s 37 of the [1988 Federal Act] the worker's entitlement to payment of the compensation to which I have referred is made dependent upon him undertaking appropriate rehabilitation."
[34](1997) 42 NSWLR 655 at 667.
Cole JA then turned to Mr Worthing's claim in respect of his permanent injuries. This was brought pursuant to s 66 of the 1987 State Act which imposes a ceiling of $100,000 on the sum payable, subject to escalation. His Honour observed that, in contrast, the sum payable under the 1988 Federal Act was that calculated in accordance with s 24 and was dependent upon the assessment of permanent impairment. Such impairment had to be greater than 10 per cent before any compensation was payable and there was a ceiling on payments of $80,000. Cole JA continued[35]:
"The claim for the cost of medical payments is pursuant to s 60 of the [1987 State Act], and s 16 of the [1988 Federal Act]. Although the provisions are similar, the amount payable under the [1988 Federal Act] is such amount as Comcare determines as appropriate for the medical treatment.
[Mr Worthing] claimed for pain and suffering pursuant to s 67 of the [1987 State Act] which provides for a ceiling of payments of $50,000 indexed. Compensation for non‑economic loss is provided by s 27 of the [1988 Federal Act] which specifies the amount of compensation as being the sum of $15,000 multiplied by the percentage of permanent impairment assessed under s 24 together with a further $15,000 multiplied by the percentage determined by Comcare under the approved guide as the degree of non‑economic loss. Plainly the conditions are different.
Finally, [Mr Worthing] claimed interest pursuant to s 113 of the [1987 State Act]. There is no equivalent provision under the [1988 Federal Act]."
[35](1997) 42 NSWLR 655 at 668.
From that analysis, it follows that to apply the State law to the claim made by Mr Worthing would qualify, impair and, in some respects, negate the application of federal law, with the consequence that, to the extent of the inconsistency thereby made out, the State law was invalid. That conclusion means that Telstra should have succeeded on its motion that the application to the Compensation Court be struck out.
It would be no answer that the subject‑matters of the two laws are not co‑incident[36]. Rather, the State law, by granting certain rights, would deny or vary a right, power or privilege conferred by the federal law[37]. Indeed, in the Court of Appeal, Cole JA, having completed the comparative legislative analysis to which we have referred, concluded that there were "gross inconsistencies" between the two sets of provisions[38].
[36]Clarke v Kerr (1955) 94 CLR 489 at 505; Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237 at 243, 251.
[37]See Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237 at 290.
[38](1997) 42 NSWLR 655 at 668.
Nevertheless, the Court of Appeal proceeded as if it was not the inevitable consequence of such a view of the matter that s 109 operated and went on to consider whether the federal law "covered the field". The Court of Appeal then decided that, because there were provisions in the federal law which provided strong indications that the field was not covered, the whole case with respect to inconsistency failed[39]. Having reached the point which it did, it was unnecessary for the Court of Appeal to proceed further. It appears to have been encouraged to do so by the submissions of the parties, including the Attorney‑General of the Commonwealth.
[39](1997) 42 NSWLR 655 at 670.
What has been said above is sufficient to bring about the result that the appeals to this Court must be allowed. However, and in any event, upon analysis, the provisions upon which the Court of Appeal relied for determination of the case were misconstrued. We turn to indicate why this is so.
Sections 52 and 118 of the 1988 Federal Act
Having considered ss 52 and 118 of the 1988 Federal Act, Cole JA concluded that their effect[40]:
"makes it plain that the Commonwealth Parliament contemplated that notwithstanding the establishment of a complete regime for the payment of compensation to Commonwealth employees and those of Commonwealth authorities and licensed corporations, such employees nonetheless had a right to seek and obtain workers compensation recoverable under a State law. Section 118(1) contemplates that happening and makes provision for it. … It seems to me necessarily to follow that the Commonwealth has not sought to exclude claims for state workers compensation in respect of injuries which might give rise to compensation under the [1988] Federal Act."
[40](1997) 42 NSWLR 655 at 669‑670.
Section 118 uses the phrase "State workers' compensation", an expression defined in s 118(6) as meaning compensation recoverable under a law relating to workers' compensation, which may be a law not only of a State or Territory but also of a foreign country. Section 118(1) states:
"If:
(a)an employee recovers State workers' compensation in respect of an injury or the loss of, or damage to, property used by the employee; or
(b)State workers' compensation is recovered by, or for the benefit of, a dependant of a deceased employee;
compensation is not payable under this Act to that employee in respect of that injury, loss or damage, or to, or for the benefit of, that dependant in respect of the injury that resulted in the death."
The apparent purpose of this provision is to prevent what might be called double recovery in cases involving recovery under the workers' compensation laws of a foreign country or recovery under a State or Territory workers' compensation law in respect of a valid operation of that law. Various examples were given in argument. Injury may have been incurred progressively while the worker was in the employment of successive employers who were themselves subjected to different statutory regimes. The result could be what Hope JA in Russo v World Services and Constructions Pty Ltd identified as the anomaly that the worker could obtain some duplication of compensation[41]. Section 118(1) protects the operation of the Commonwealth law in such a situation by denying payment under it. The section is concerned with avoidance of duplication of recovery rather than protection of concurrent rights to recovery.
[41][1979] 1 NSWLR 330 at 335.
Section 52 is included in Pt IV (ss 42‑52) which is headed "LIABILITIES ARISING APART FROM THIS ACT". Section 44, which was construed in Georgiadis v Australian and Overseas Telecommunications Corporation[42] and The Commonwealth v Mewett[43], extinguishes certain common law causes of action. Section 52 requires employees to elect between entitlement to compensation under the statute and benefits under an "award" in respect of the same injury or with respect to the same loss of, or damage to, property. The term "award" is defined in s 52(6)[44] so as to identify determinations under the Public Service Arbitration Act 1920 (Cth) and awards or orders made, or agreements entered into, under Commonwealth laws relating to conciliation and arbitration or under laws of a State or Territory. Section 52 does not proceed upon any assumption as to concurrent operation of federal and State laws with respect to workers' compensation. It operates to limit rights by requiring an election between entitlement to compensation under the 1988 Federal Act and the enjoyment of benefits under an award in respect of the same injury.
[42](1994) 179 CLR 297.
[43](1997) 191 CLR 471.
[44]As amended by s 25(1) and Sched 1 to the 1992 Amendment Act.
The proposition accepted by the Court of Appeal and expressed by Stein JA as being that ss 52 and 118 "evince an intention to recognise mutuality between the Commonwealth, State and Territory workers compensation systems" and "fly in the face of inconsistency" cannot be accepted[45].
[45](1997) 42 NSWLR 655 at 673.
The Union Steamship Case
There remains for consideration the reliance by Mr Worthing upon the decision in Union Steamship Co of Australia Pty Ltd v King[46]. The reasoning in this case was said to illustrate a continuing pattern of Commonwealth legislation which allowed for concurrent workers' compensation rights under federal and State law.
[46](1988) 166 CLR 1.
The immediate issue in Union Steamship was whether the Compensation Court had jurisdiction to determine a claim brought under the 1926 State Act for an injury allegedly suffered while the claimant was employed as a crew attendant on one of the appellant's ships which was registered in New South Wales and engaged in interstate trade and commerce. The claimant would not have been entitled to compensation for the injury in question under the Seamen's Compensation Act 1911 (Cth) ("the Seamen's Compensation Act") because the claimant's capacity to earn full wages was not impaired. That circumstance was no obstacle to his claim under s 46 of the 1926 State Act.
This Court[47] affirmed the decision of the New South Wales Court of Appeal that s 46 was not inconsistent with the Seamen's Compensation Act and that the federal statute did not manifest an intention to cover the field[48]. The Court determined that, on its proper construction and particularly by the use of the term "compensation" in the Seamen's Compensation Act to embrace both common law damages and statutory compensation in the nature of workers' compensation, the Parliament had not deprived a seaman of the right to bring common law and statutory proceedings under State law in respect of an injury; rather, the legislature had merely insisted that a seaman who pursued the Commonwealth remedy and did so successfully could not recover twice by invoking the laws of the State[49]. In that sense, there was mutual co‑existence between the State and federal laws[50].
[47](1988) 166 CLR 1 at 16.
[48]The Seamen's Compensation Act was repealed by s 16 of the Seafarers Rehabilitation and Compensation (Transitional Provisions and Consequential Amendments) Act 1992 (Cth). Section 139A of the Seafarers Rehabilitation and Compensation Act 1992 (Cth), inserted by s 3 and Sched 1 Item 96 of the Marine Personnel Legislation Amendment Act 1997 (Cth), expressly excludes the operation of State and Territory workers' compensation laws.
[49](1988) 166 CLR 1 at 15‑16.
[50](1988) 166 CLR 1 at 16.
Union Steamship does not indicate any different conclusion on the question of inconsistency to that which we have reached earlier in these reasons.
Conclusions
No application was made for the consolidation of the appeals. If they had been consolidated, there would have been a need for only one set of orders.
As matters stand, the appropriate course, in each appeal, is to order that the appeal be allowed and Order 3 of the orders of the Court of Appeal entered on 31 March 1998 be set aside. In place of Order 3, it should be ordered that the appeal to the Court of Appeal be allowed, Order 1 made by Truss CCJ on 10 July 1997 be set aside and the application for determination dated 10 September 1996 be struck out for want of jurisdiction.
It was a condition of the grant of special leave in the Telstra appeal that there be no disturbance of the costs orders made in the courts below and that Telstra would pay Mr Worthing's costs of its appeal to this Court in any event. It was a condition of the grant of special leave to the Attorney‑General of the Commonwealth that there be no disturbance of the costs orders made in the courts below and that the Attorney-General pay the costs of Mr Worthing of the appeal to this Court in any event. It should be so ordered.