Victims Compensation Fund Corporation v Brown & Ors [2003] HCATrans 334 (2 September 2003)

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Victims Compensation Fund Corporation v Brown & Ors [2003] HCATrans 334 (2 September 2003)

Last Updated: 3 September 2003

[2003] HCATrans 334

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S162 of 2003

B e t w e e n -

VICTIMS COMPENSATION FUND CORPORATION

Appellant

and

SCOTT BROWN

First Respondent

SHARON LEWIS

Second Respondent

DISTRICT COURT OF NEW SOUTH WALES

Third Respondent

McHUGH ACJ
GUMMOW J
KIRBY J
HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 2 SEPTEMBER 2003, AT 11.36 AM

Copyright in the High Court of Australia

__________________

MR M.G. SEXTON, SC, Solicitor-General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MR C.L. LONERGAN, for the appellants. (instructed by Crown Solicitor for New South Wales)

MR A.J. BELLANTO, QC: May it please the Court, I appear with my learned friend, MR G.C. HALSALL, for the respondents. (instructed by Hilton King & Associates)

McHUGH ACJ: Before you commence, I have a certificate from the Deputy Registrar that he has been informed by the solicitor for the third respondent, the District Court of New South Wales, that the third respondent submits to the order of the Court save as to costs. Yes, Mr Solicitor.

MR SEXTON: If the Court pleases, it is an appeal from the Court of Appeal of New South Wales. Your Honours, it has its origins in the incident on 15 March 1998, when the first and second respondents were living together in Wollongong. The first respondent answered a knock at the door and was stabbed, punched and kicked by an assailant. The second respondent was standing nearby and observed this attack.

Your Honours, on 5 May 1998, both respondents made applications for compensation to the Victims Compensation Tribunal in New South Wales, the first respondent as a primary victim, with respect to both the physical injuries that he sustained and also for shock, the second respondent claimed as a secondary victim and claimed compensation for shock.

Your Honours, I will go to the legislation which is because of its titles only perhaps somewhat confusing. The applications were made under the Victims Compensation Act 1996. Your Honours, the relevant provisions are an annexure to our written submissions but your Honours also have a volume with three pieces of
legislation in it, and the first piece of legislation is the Victims Compensation Act 1996. There was an earlier piece of legislation, 1987 legislation, that was repealed.

KIRBY J: Apparently, there was an affidavit at the special leave hearing showing that there was a significance in this decision for a number of other cases. Is that correct?

MR SEXTON: Yes, that is so, your Honour.

KIRBY J: That strikes me as surprising given that it was the peculiarity of the decision relating to the differentiation between symptoms and disability, the non-coincidence of them, that gave rise to the factual foundation for this particular case. That would not be a universal or even, I would have thought, common phenomenon.

MR SEXTON: Your Honour, it seems to be potentially an element in a large number of cases, and that was the evidence.

KIRBY J: Anyway, special leave was granted. You got through that barrier.

MR SEXTON: Your Honour, the 1996 legislation, which is the first one in the binder and under which the applications were brought, was amended by Act No 134 of 1998, and that is the second piece of legislation in the binder and I will come to one aspect of that - - -

KIRBY J: Does the problem not arise under the new legislation?

MR SEXTON: It does not, your Honour, no.

KIRBY J: So it affects this case and any other cases where a peculiar factual situation has arisen that there is not coincidence between symptoms of disability.

MR SEXTON: That is right, but potentially a large number of cases, your Honour. The name of the legislation was then changed by Act No 41 of 2000 which is why the third piece of legislation, the consolidated version, then appears as the Victims Support and Rehabilitation Act 1996. So they are the three pieces of legislation, but it is the first piece of legislation with which your Honours are concerned.

KIRBY J: Why are you taking time on this? Is there some significance to the change in the title of the Act?

MR SEXTON: Only because, your Honour, it is confusing that the current legislation has the title that it does and in comparison with the 1996 legislation.

KIRBY J: We will just spend our day with ancient history.

MR SEXTON: Your Honour, it is something that probably arises when this particular matter is looked at. It is simply to prevent the Court having to answer those questions.

KIRBY J: I am just thinking, Mr Solicitor, that there are so many people knocking on the door of this Court, some of them so ardent to enter the Court, that to spend the whole day on legislation that has not only been replaced, but replaced now twice, by substantially different legislation.....seems an excess of enthusiasm.

MR SEXTON: Your Honour, it has not been replaced twice. It has been replaced substantially once, and only then. The third change concerned the title. We can only say, your Honours, that there are a large number of cases in which this point may well be taken and that is the reason for the appeal.

Can I conclude that historical question, if that is what it is, your Honours, by saying that the reason that the 1996 Act is applicable to these two claims before your Honours is that – and I will just give your Honours the reference – it is clause [26] of Schedule 1 of the 1998 amending legislation. What that did was to, in effect, say that if a claim had been made before 7 April 1999, as these claims have been, then the 1996 legislation would be applicable.

GUMMOW J: Where do we see that?

MR SEXTON: If your Honour goes to that second piece of legislation at page 20. It is clause [26] and then No 12.

GUMMOW J: Where do we get that date? That is what I could not see.

MR SEXTON: If your Honour goes right to the very end of the consolidated – almost to the end of it – page 96 of the consolidated and last piece of legislation in the binder, your Honour will see a reference there at about point 5 to Act No 134 of 1998, and your Honour will see when certain clauses came into operation. The relevant clause came into operation on 7 April 1999.

GUMMOW J: Thank you.

MR SEXTON: Now, your Honours, if I can just complete that account of what happened following the claims, an assessor under the legislation upheld the first respondent’s claim in relation to his physical injury, but not in relation to shock, on the basis that the medical reports did not establish a disability lasting longer than six weeks – and a similar finding in relation to shock for the second respondent, Ms Lewis. That decision appears - - -

GUMMOW J: I am not sure that date is right.

HAYNE J: I do not think it is, Mr Solicitor. Maybe I am wrong, but I do not think it is.

HEYDON J: Is it not 15 February 1999?

GUMMOW J: I think it is okay. The schedule 1 being spoken of at page 96 is the schedule 1 of a 1998 Act. Paragraph [26] was doing something to what, to schedule 3, was it, of the 1996 Act?

MR SEXTON: I can only say, your Honour, that I went through this maze and arrived at - - -

GUMMOW J: Maybe if someone could just write down the maze on a piece of paper at some stage and give it to us.

MR SEXTON: Yes, your Honour. I think that is where it comes out, but - - -

GUMMOW J: We do not want to be sitting in Chambers and suddenly stumble upon this great stone in our path.

MR SEXTON: No. It is a question, your Honour, of – clause[26], the date of commencement for clause[26] is 7 April 1999 and it is clause [26] that says that:

The provisions of Schedule 1 [of the 1996 Act] relating to shock that were omitted by the [1998] Act continue to have effect in the case of any person who applied . . . before the omission of those provisions.

GUMMOW J: So it is paragraph 12.

MR SEXTON: The real question is, it is also the date of the omission of the provisions and they were omitted by clause [19] which is on page 17 of that second piece of legislation and your Honour will see that the date of commencement of clause [19] is also 7 April, 1999.

KIRBY J: Does the second reading speech for the amendments to the Victims Compensation Act, its renaming and so on, reveal that the alteration and the benefits recoverable for shock represented a response by Parliament to decisions that had been made which were thought to be overgenerous?

MR SEXTON: I will take your Honour to that speech; it does talk about imposing some limitations and in a general sense, your Honour.

KIRBY J: It cannot be said that that represents a parliamentary acceptance of interpretation such as that now adopted by the Court of Appeal, but then a statutory amendment of them. Do you understand what I mean, that at some times it has been said where legislation supervenes and amends legislation that that represents a parliamentary acceptance of the construction which exists in the decision now being appealed?

MR SEXTON: But this construction here post-dated those amendments, your Honour.

KIRBY J: But I gather from the written submissions that there is a history of constructions of the legislation that lay behind before this one.

MR SEXTON: Your Honour, I cannot - about other provisions of the legislation, your Honour.

KIRBY J: The shock provisions.

MR SEXTON: The amendments to the shock provisions were one of a number of amendments that were made in 1999.

KIRBY J: They preceded the incident that led to the claim of the present respondents before us?

MR SEXTON: The amendments were made after the incident.

GUMMOW J: But before the judicial construction?

MR SEXTON: Before the judicial construction.

KIRBY J: Before Judge Phelan’s decision?

MR SEXTON: I am not sure in relation to Judge Phelan’s - - -

KIRBY J: Anyway, we will sort all that out in due course when we know the exact starting date.

MR SEXTON: Is your Honour Justice Gummow satisfied about the date?

GUMMOW J: No.

HAYNE J: No, I am not.

KIRBY J: We want a piece of piece of paper with the authority of the Crown, preferably with a big stamp.

MR SEXTON: I can arrange that, your Honour. Can I say that I am fairly confident that it is 7 April 1999.

GUMMOW J: We have to be absolutely confident.

MR SEXTON: Well, I was absolutely confident until your Honour raised it, but we will produce the piece of paper. I think I had said that an assessor made a decision rejecting the two shock claims and there was an appeal to one of the magistrates, I think the chairperson constituting the Tribunal. That was upheld. As your Honours are aware, an appeal was taken to the District Court and that appeal was allowed by Judge Phelan.

KIRBY J: We are not concerned with a point that Justice Mason discussed in the Court of Appeal about the right of appeal being limited to a point of law? That is not something that troubles us?

MR SEXTON: It does not, your Honour, no. The present appellant, the Fund, then sought prerogative relief in the Court of Appeal. That was refused by majority and the appeal from that decision is now brought to this Court. Can I say, at the risk of more historical material, your Honour, but briefly - and I will come to the relevant provision, which is clause 5 of Schedule 1 to the 1996 legislation – to just note that it was replaced in the 1998 amending legislation by a rather different provision, one that referred to “Psychological or psychiatric disorder” and seemingly on the face of it contained some significant limitations perhaps in comparison with the previous provision. If your Honours wanted to note that, it is found at page 17 of the 1998 – the second piece of legislation at about points 8 to 10 and following on the next page as well, page 18. I am sorry, the follow-up is actually in the schedule.

Your Honours, if I can come now to the relevant provision, which is clause 5(a) of Schedule 1. That is annexed to our written submissions or it can be found in that first piece of legislation, the 1996 Act, in the volume at page 50. The scheme of the legislation is premised on an act of violence and then claims which are brought in various categories: primary, secondary and family victims.

The legislation provides that in – the categories of injuries for which claims might be made are set out in the schedule. One of those, as your Honours will see, is the category of shock. Clause 5(a) of that schedule begins by saying:

The following applies to the compensable injury of shock:

(a) Compensation is payable only if the symptoms and disability persist for more than 6 weeks.

That, your Honours, is the provision that is at the heart of the case. Your Honours will see that in the remaining - - -

KIRBY J: The word “only” gives emphasis to the limitation which is being imposed.

MR SEXTON: We would say so, your Honour, yes. The argument in the Court of Appeal and in this Court is really as to the meaning of the word “and” between the words “symptoms and disability”, whether it is to be read in a cumulative fashion or whether it is to be read disjunctively.

HAYNE J: Is that to be read with the monetary table at pages 59 and 60?

MR SEXTON: Yes, your Honour.

HAYNE J: In particular, the last entry under “Shock” at page 60?

MR SEXTON: Your Honour, we would say that the “and” in that case would be taken in the same way as cumulative. Your Honours will see the four time zones in relation to shock at pages 59 and 60 that Justice Hayne has referred to, periods of “6 to 13 weeks”, “14 to 28”, “over 28 weeks (but not permanent)”, then the phrase “Permanent symptoms and disability”.

I should say, your Honours, that as Justice Hayne has drawn attention to that provision, that it is not easy to read this piece of legislation as a seamless document in which everything is internally consistent. It refers to a wide range of injuries and different times and standards for compensation. It also deals with questions, of course, of seriousness of harm. This clause is perhaps an example of the fact that it cannot be read in that seamless way, but in relation to clause 5(a) we say that that at least is a clause that can be read with some certainty for two reasons and that is because we say that the reference to “and” in that clause can be quite readily given its normal conjunctive meaning and, secondly, that the second reading speech that I will take your Honours to in due course supports that reading of it, so that whether one - - -

KIRBY J: I would have thought you say you start with the word itself and its normal meaning is conjunctive. You look then to the context, and there are indicia in the statutory context, and then, thirdly, if you are still in any doubt, you can have a look at a whole range of other external indicia and they tend to support it, including the second reading speech. You might also look at the whole prejudice of the English law against nervous shock and psychiatric injury against which background this is written.

MR SEXTON: Your Honour, the whole scheme of the legislation is that it provides compensation for some injuries, if I can use that term loosely, but not others. So it is really a question of putting those claims into categories. In other words, the legislation is not designed to provide compensation for all acts of violence, nor is it, in this sub-category, designed to provide compensation for all instances of shock, otherwise there would be no need for any provisions limiting the kinds of claims for which compensation is payable. So that starting from that premise, we would say that the plain English meaning and the purpose of the legislation both point strongly in the one direction in this case.

GUMMOW J: How was it decided against you? By what reasoning did you lose?

MR SEXTON: In the Court of Appeal?

GUMMOW J: Yes.

MR SEXTON: Your Honour, the majority in the Court of Appeal - - -

GUMMOW J: On the face of it, it looked simple. How did it become complex?

MR SEXTON: The majority in the Court of Appeal – your Honour, there is a number of sub-arguments but largely, we would say, the majority took the view that this was remedial legislation and therefore should be broadly and favourably construed in favour of the person making the claim for compensation. Our answer to that is the answer I just gave to Justice Kirby, that it is remedial but only in relation to certain things, and the question is whether it fits within this provision.

HAYNE J: Where do we find the linchpin of the majority reasoning against you? Do you point to a particular passage and say that is where they went wrong?

MR SEXTON: Your Honour, it is a judgment of the President, Justice Mason, with a short supporting judgment by Justice McClellan and - - -

HAYNE J: I understand that, but is there a particular passage?

MR SEXTON: I am not sure that there is, your Honour, in the sense that it is - - -

KIRBY J: Justice Mason says he takes five steps and I think he gives us a sort of an indication of the train of his - - -

MR SEXTON: Starting on page 68 of the appeal book, your Honour. But, your Honours, in our submission, the theme of Justice Mason’s judgment is that it is remedial legislation. There are a range of arguments on the two sides, the Chief Justice in dissent and Justice Mason’s judgment, concerning matters of construction, but in one sense we would say that the plain English meaning, combined with the purpose, provides a reasonably straightforward answer to the question in this case.

KIRBY J: You are going to come here and hammer the table and say, “Plain English meaning”, and Mr Bellanto is going to get up and say, “Purposive construction”, and between these two slogans the truth lies somewhere, but surely, we have to go – I mean, there are cases where the courts have held that “and” can mean “or” in that context, so you have really got to look at as many indicia as you can derive from the legislation itself, have you not?

McHUGH ACJ: On your argument, it must follow, must it not, that if somebody has symptoms for three weeks and a disability for three weeks, they fail?

MR SEXTON: That is right, your Honour, yes.

KIRBY J: You say that is consistent with the limited entitlement, the word “only” and the fact that elsewhere in the statute it uses the word “or”, “symptoms or disability”, and in this case it uses the word “and” as a cumulation.

MR SEXTON: Your Honour, the provisions relating to shock, which are in a sense set out in that rather brief form – we are looking at the totality of them at the moment – are a rather discrete category. In our submission, it is not probably helpful to compare them, even if they could be easily compared to, for example, those parts of the schedule concerning broken limbs or scarring, for example, sexual assault. There is a wide range of conditions that are dealt with by the legislation.

KIRBY J: Do they sometimes use “and” in circumstances where you would concede that they mean “or”?

MR SEXTON: Well, there is really nothing that is directly comparable to this problem, your Honour. There are other references in other parts of the table to symptoms and to disabilities, but in general sometimes symptoms, in principle, sometimes symptoms and disabilities together, seldom, probably, disabilities by themselves. Those terms, of course, are not defined in the legislation.

HAYNE J: Are you saying symptoms and disabilities are not defined? You have these inclusive provisions in (c), (d) and (e).

MR SEXTON: They are, in relation to shock.

HAYNE J: Just so.

MR SEXTON: Yes, but not in a general sense in the legislation, your Honour.

HAYNE J: I understand that, but the operation of the provision which the Court of Appeal would give would have it that someone suffering from anxiety or tension, whose work, school or other educational performance was not impaired, for whom there was no significant adverse effect on social relationship, and who had no sexual dysfunction, would be compensable. Is that right? That is the argument that commended itself to the Court of Appeal – or the consequence of the argument?

MR SEXTON: Yes, your Honour. We would say, even if one looks at it just for the moment in the way that the majority looked at it in the Court of Appeal as remedial legislation, the clause that your Honour Justice Hayne has just referred to, clause (e), imposes a relatively low threshold in relation to disabilities. It talks about “impaired” – it does not mean that there can be no work done, for example – “impaired work or school or other educational performance”. It is not, we would say there, a particularly high threshold, and then there are, of course, a range of symptoms that are referred to above.

The Chief Justice in the Court of Appeal took the view that those clauses, (c), (d) and (e), were exhaustive, even though they begin by saying that the “symptoms include” and the “disabilities include”. We would adopt that, on the basis that if one were to go beyond those, really, it is hard to see what could be added to them, in a sense, that that would be the rational way of reading the provisions.

KIRBY J: In the old days, before we were all warned off against expressio unius, a point would be made that where the drafter meant “or”, he said “or”, as in (e), and where he meant “and”, he said “and”, as in (a).

HAYNE J: The notion that that list is exhaustive is a fairly large notion. (c), for example – we see nothing about depression, we see nothing, do we, about things like obsessive compulsive disorder.

MR SEXTON: Your Honour, except the phrase “anxiety” might well - we would say that there is very little that is not covered by those, bearing in mind that the schedule is not done in a definitional way. The question then becomes, in relation to this particular case, what is the best reading of clause (a)?

McHUGH ACJ: But why can you not read it as a hendiadys? That is, the expression of an idea by two words connected with “and”, instead of one modifying the other.

MR SEXTON: Yes.

McHUGH ACJ: So that “symptoms and disability” express a single idea.

MR SEXTON: Your Honour, that does not seem consistent with the rest of the provision, where - - -

McHUGH ACJ: Why not, because, for example, paragraph (c) and (d) must be alternatives, must they not?

MR SEXTON: Yes, your Honour.

McHUGH ACJ: You do not have to have psychological symptoms and those physical symptoms. Why cannot you read (a) as one condition and “symptoms and disability” seeking to express the one idea; (b) as another condition; (c) and (d) are definitional; and (e) is definitional?

MR SEXTON: We would say, though, your Honour, that the point of (e) is to impose some kind of consequence, if that is the – using that word for the moment – in addition to the symptoms, and albeit at a reasonably low level, and that that is reflected then in (a) which requires for a period of six weeks, both of those to coexist. If your Honour looks at the table, column 1, where it has those four times zones for shock, the first of those is “Lasting 6 to 13 weeks”. So, in our submission, the intention of the legislation was that under six weeks that there was not to be any compensation. That is reflected in clause (a) that there was not to be compensation unless, in addition to the symptoms, there were some consequences that affected the person in question in their work or school or in other respects that are specified.

Your Honour, I will come to the question of the authorities which are not, in our submission, particularly useful in relation to conjunctive and disjunctive readings of the word “and” because the categories in which “and” would be read as “or” are relatively limited, we would say, and certainly do not fit in with this particular case.

GUMMOW J: Do we not have to start with item 1 in Schedule 1 at page 49 which contains descriptions of various injuries, some of which, but not all of which, are then given some further explanation in the succeeding paragraphs of Schedule 1?

MR SEXTON: Yes, your Honour. Your Honour, section 6 sets out who is eligible for compensation and then section 10 provides:

Schedule 1 . . . specified those injuries that are compensable injuries –

Section 17 says that:

Compensation . . . is payable in accordance with the schedule –

Section 10 says where the schedule is to be found.

GUMMOW J: Yes, but what I am getting at is the first time you run up against shock is in fact in the schedule at page 59 because that is what is attached to item 1 and then what follows in item 5 is by way of further explanation, but you begin with the idea that whatever it is has to last six weeks, it will be permanent.

KIRBY J: That seems to give support to your submission because it emphasises if you start from the point of the purposive construction of the legislation, the purpose is not just to give compensation to victims of injury, it is to give compensation to whoever is specified in the statute, and that includes some who, in the ordinary parlance, would not be victims, they are secondary victims or family victims, and, secondly, by clause 1 of Schedule 1 it is only as specified in column 1 of the table and if you then add to that the word “only” and I would say the definite article “the”, “only if the symptoms and disability persist for more than 6 weeks” in clause 5(a) of the schedule.

MR SEXTON: I should perhaps mention, your Honours, that legislation provides, not in the schedule, for maximum amounts payable – reflected in the schedule – and a threshold under which no compensation is payable at all. They are sections 19 and 20.

KIRBY J: So that fits in with the general tendency to cap entitlements - 19 and 20, plus the schedule you took us to earlier.

MR SEXTON: Could I take your Honours to that second reading speech?

HAYNE J: Just before you go to that, can I just detain you a moment longer on the relationship between the parts of the schedule. Item 5(b) says, “The injury comprises conditions attributed to” certain matters. A view of the way in which this is put together is that the injury is a condition that is attributed to certain matters, but the compensable matter is sustaining an injury which comprises a condition. Is that right?

MR SEXTON: It is not easy to analyse (b), in particular, your Honour. The condition perhaps can be broadly referred to as shock.

GUMMOW J: But shock has to be an injury, because otherwise it does not fit within the schedule. It does not fit within 10(1) and is an item in the schedule. Any item in the schedule has to involve this notion of injury. In a way, 5(a) should have been (b), and (b) should have been (a), because (b) is identifying and (a) is limiting in a way – or is a check or qualification.

MR SEXTON: Your Honours, I do not pretend that some of those provisions are easy ones to - - -

GUMMOW J: It would be good to know where the drafting comes from for this sort of legislation.

MR SEXTON: I am delighted to say that I do not, your Honour.

HAYNE J: A ministerial staffer’s notes.

MR SEXTON: There is a sense in which the schedule has been put together in all of those different categories, and it may be that in some places they do not entirely mesh. As for clause 5(a), your Honours know what we say about it. Can I go very briefly to the second reading speech of the 1996 legislation. It is set out as the final document in that volume. We have set out the relevant provisions at paragraph 7.4 of our written submissions introducing the legislation. The two relevant pages are 974 and 976 of the Hansard. The page numbers are not at the bottom. 974 begins at the middle of the second page and the relevant passage is - - -

KIRBY J: How is this cited? I mean, if we do not have the actual Hansard, it is difficult to cite it correctly if we are going to use it. I know it is convenient to have it in this form but - - -

MR SEXTON: The page references are right, I think, your Honour.

KIRBY J: I see, you have put them in your submissions?

MR SEXTON: The page references are in this as well, your Honour, but they are not at the bottom of the page.

KIRBY J: I see, yes, Justice Heydon, ever-vigilant, has pointed out the pages on the side, on the left of page 2.

HAYNE J: What do we get out of this, Mr Solicitor, do you say? What is the point that you would draw from these passages?

MR SEXTON: That the legislation in general and the schedule, your Honour, is designed not only to set out a series of categories only for which compensation will be payable but, in fact, in the case of this legislation, to have rather more limited categories than was in the previous legislation.

GUMMOW J: Is there a particular passage that says that?

MR SEXTON: Yes. I am just trying to locate it in this, as opposed to our written submissions, your Honour.

KIRBY J: Does he say something like, of course, the government must be ever-vigilant for the funds in consolidated revenue and for people who will be making claims for nervous shock because we are very suspicious of them.

HEYDON J: Page 3, point 4. The bit you rely on begins:

The Government is convinced that there is a need to act decisively.

MR SEXTON: Yes, your Honour, that is the passage that we have set out in the submissions:

The Government is convinced that there is a need to act decisively to address the problems which face the present scheme –

that was the scheme under the 1987 legislation –

Given that victims compensation payments are largely financed from consolidated revenue, the Government has a clear responsibility to ensure that the scheme remains financially viable and that future compensation payments do not cause an unaffordable drain on public funds.

Then a little further on:

The principal aims to be achieved by the reforms are . . . to ensure that awards of compensation are directed toward those victims suffering the most serious injuries; and to address the escalating cost of the scheme such that the genuine needs of victims are met at a reasonable cost to the community.

GUMMOW J: Where are you - - -

MR SEXTON: I am sorry, that is at about point 6 on that same page, your Honour.

HAYNE J: It does seem to cover most bases, Mr Solicitor. What do we get out of it?

MR SEXTON: Only to underline, your Honour, that it is a scheme designed to remedy certain - - -

HAYNE J: At a reasonable cost, balancing this, at this particular point in time, having regard to all the pressures that are upon – I mean, what are we meant to draw from all this, Mr Solicitor?

MR SEXTON: Your Honour, it is only to address what we say was the underlying theme in the Court of Appeal, which was that this was legislation designed to provide benefits, therefore, one would construe the clause in a way that would provide the maximum benefit, and we say that that is not the scheme.

KIRBY J: Is there anything in the history of the legislation, the pre-existing legislation? When did the first Victim Compensation Act come into force in New South Wales?

MR SEXTON: 1987, your Honour. We cannot find anything else that is – and one of the reasons for that is that the provisions about shock came in in 1996 and went out in 1998, and they were not addressed specifically, of course, in the second reading speech.

HAYNE J: Now, Mr Solicitor, you can have, I would assume, symptoms but no disability. Can you have disability and no symptoms?

MR SEXTON: That seems to be implicit in the clause, your Honour. It may well be, of course, that that is an unlikely situation. For example, someone’s work is impaired but they have no symptoms at all. It seems unlikely, but it seems to be technically possible under that clause.

GUMMOW J: But you would have a disability without any manifestation of it.

MR SEXTON: It raises a question of how one would know about the disability, your Honour.

McHUGH ACJ: But the injury must comprise “conditions” under 5(b), so it seems to indicate some external manifestation, does it not? I suppose one point in your favour is that clause 5(a) seems to have no function unless it was really intended to require both symptoms and disability to exist together for six weeks. In the table, you can only get compensation for shock lasting 6 to 13 weeks, 14 to 28 weeks or lasting over 28 weeks. If you go to clause 1 of the schedule and start there:

The injuries specified in column 1 of the table to this Schedule are compensable injuries for the purposes of this Act.

Shock would fall within the table, but then clause 5 imposes limitations on them and paragraph (a) would seem to have no purpose, unless it is intended to make both symptoms and disability to be cumulative.

MR SEXTON: Yes, we do say that, your Honour. That seems to us to be - - -

GUMMOW J: Yes, (a) explains the first heading under “Shock” on page 59, why it begins “Lasting 6”.

MR SEXTON: Yes. It seems to us to be a strong argument about the construction, your Honours.

HAYNE J: What of the person who presents saying, “Since the events, I have suffered badly from insomnia. So bad was it for five weeks that I couldn’t go to work. I’ve still got it but I’m now back at work. I’ve still got it eight weeks after the event”. That is the case that straddles it.

MR SEXTON: Yes, that is right, your Honour. The legislation has a cut-off point. It may or may not be, in a policy sense, a reasonable cut-off, depending on what views might differ on that, but we say it has a cut-off. If it is not going to cover everything, it has to have some form of limitation.

McHUGH ACJ: Except that there must be overlap between symptoms and disabilities. In the example that Justice Hayne gave, it may be that although your insomnia does not impair your work performance, nevertheless it is a disability itself. So it is both a symptom and a disability.

MR SEXTON: Your Honours will recall a case recently in the Court concerning the definition of “disability” under the federal Disability Discrimination Act, when some of these very similar arguments took place. There could be, we would say, under (b), (c), (d) and (e), some extremely difficult questions perhaps, but fortunately they are not the ones that are currently before the Court. The question is whether those other subclauses can be helpful in construing clause (a). In our submission, probably not, because of some of the difficulties that they have themselves. In our submission, clause (a) is at least somewhat clearer than some of the other aspects.

KIRBY J: What is an example of a case where a court has held that “and” can mean “or” that you accept? Is there such a case?

MR SEXTON: There are two categories that Justice Blackburn put forward in The Licensing Ordinance Case (1968) 13 FLR 143, really at l46 - - -

KIRBY J: Do I read the Court of Appeal correctly to say they accept his Honour’s illustrations, but they do not accept that they exhaust the whole field? I think all judges in there said that.

MR SEXTON: Well, we would say, your Honours, that they might not exhaust the categories, but they come fairly close to it. There is the notion where there is some sort of mistake or where the purpose of the legislation indicates that an absurd result would follow, and that is broadly accepted, and then the series of a number of items, where the final one is “and”, but, in fact, it is intended, pretty clearly, on the face of it, to actually be disjunctive. Neither of those are this case, of course.

McHUGH ACJ: But you can get “and” in a certain context operating, as I said, as a hendiadys. When I was at the Bar there is a reported case I was in led by Mr Glass, called Traders Prudent v Workers’ Compensation Commission, I think, and there the question was – there is a term in the statute which I cannot remember exactly, but it was something like “failed to co-operate and do something”, and it was held it was a single idea, that you did not have to prove co-operate and also the other element; it was just a single idea. I cannot remember the exact - - -

MR SEXTON: It depends on the context of the legislation, your Honour, and we do not say that it can never be the case, but we would say that there has to be a good reason for departing from the plain English, except in the sort of category that your Honour gives or the sort of categories that Justice Blackburn set out.

KIRBY J: That seems to suggest that his Honour’s aphorism at 147 incorporated in the headnote with:

the proposition that “and” can sometimes mean “or” is true neither in law nor in English usage, and the authorities do not show otherwise.

That seems to overstate the position. If that is the case - - -

MR SEXTON: We would say that his Honour is referring to the normal situation. In other words, that you would not start from the proposition that the meanings are interchangeable; that there has to be a good reason in the context of the statute why you would take a meaning that, on the face of it, had not been given by the draftsman.

KIRBY J: Lord Chief Justice Parker in Oakes, at the top of the page, said that courts will interpret it as “or” if they are convinced that there is a mistake or they are driven to that. Justice Mason and Justice McClellan said they could not see why you would have the double requirement, but I can see why you would have the double requirement, subject to Mr Bellanto’s eloquency, because our law has always had lots of prejudices against shock and this, together with capping, would be just another instance of that attitude of our law.

It may be irrational, it may be wrong, the common law may be slowly advancing along the path of civilisation, but there is a lot of prejudice in the community against shock. People say, “Well, we cannot see it. It is not a wound. We don’t know that it really exists, therefore, we are going to make sure they are well and truly shocked. They are going to have to have symptoms and disabilities for more than six weeks, otherwise we just don’t think they deserve it.” That would be entirely consistent with the attitude of the common law.

MR SEXTON: But, your Honour, it is not just the case of shock. The whole schedule and the whole legislation is about setting out a right to compensation, but then cutting it back - - -

KIRBY J: I realise that, but, in this area, in this specific claim of disability or of a consequence of a crime – I mean, lots of people can go around and say, “I am terribly, terribly shocked”, and people are suspicious of it. So it does not seem to me to be manifesting a mistake for Parliament to say this. Parliament is just reflecting the usual prejudices of English-speaking people against disabilities that they cannot see in black and white and blood and gore.

MR SEXTON: There may be, your Honour, but in some ways it probably reflects a financial concern as much as that. If one looks, for example, clause 7 talks about “Burns and scarring” – there is no compensation for scarring, unless it is permanent. There is an endless series of limitations in the schedule.

McHUGH ACJ: How much longer have you to go, Mr Sexton?

MR SEXTON: Not very long, your Honour, as your Honour asks.

GUMMOW J: Do not read us out lots of cases. I want the statutes.

MR SEXTON: I have no intention of doing that to this Court, your Honour. I was simply going to add the remark of Professors Pearce and Geddes in Statutory Interpretation in Australia, 5^th edition. It is set out in our written submissions at page 40.

KIRBY J: They seem to have changed their view, according to the text.

MR SEXTON: They have changed it slightly, but what they now say, your Honour, in relation to – they were using the categories of Justice Blackburn in saying:

Beyond these two circumstances, the courts will not be inclined to treat “and” and “or” as - - -

GUMMOW J: You can just never have rules, because statutes.....

MR SEXTON: No, we appreciate that, your Honour. We only want to resist the proposition that, in a sense, the word is interchangeable and that one does not start from the notion of giving it its plain English reading.

KIRBY J: Justice McClellan added a reason to that of Justice Mason. Would you remind me? It was a textual reason. He says, at page 82:

it would be remarkable if the legislature intended that innominate injuries are compensable when either the symptoms or disability persist but in respect of the injury of shock, the position is otherwise.

Well, I do not find that remarkable, because that just reflects the prejudice of our law.

MR SEXTON: They are also two completely different notions under this legislation, your Honour. With respect to his Honour, it is not, we would say, a useful comparison.

KIRBY J: It may be that it should not be so, but it is not at all exceptional and I just do not think that adds much to what Justice Mason said.

MR SEXTON: Your Honours, unless there is anything more at the moment, they are our submissions.

McHUGH ACJ: Yes, thank you, Mr Solicitor. Yes, Mr Bellanto.

MR BELLANTO: If your Honours please, in response to my friend’s submissions and in relation to some of the comments that have fallen from your Honours, can I invite your Honours to take into account our written submissions which we feel fairly comprehensively address the matters that have been raised this morning and the arguments advanced by the appellant.

May we add a few remarks. Your Honours, take the case, for example, of a person who has agoraphobia, which is one of the symptoms within clause 5, necessarily thereby a reclusive single person, he has no sexual function and does not thereby come within the clause (e) definition but may have one of the symptoms such as agoraphobia, which can be debilitating, or he may have alopecia, he or she may have asthma. If the interpretation is conjunctive, that person would not be entitled to claim compensation and when one takes into account - - -

KIRBY J: But the answer is, “So what?” I mean, this is a special benefit, it did not exist in the common law, it is a new and novel ideal, it is a benefit - that is something that has to stand in your favour – but it is a benefit only insofar as Parliament so provides. I just do not see the fact that some people fall outside it to be an argument against giving the words in (a) the normal the meaning that “and” is conjunctive.

MR BELLANTO: Your Honour, that may be an appropriate interpretation for some legislation, but not remedial legislation, of which this is. There is another principle that we call in aid here. Where there are competing interpretations of legislation, the interpretation that benefits a class or a person should be the preferred interpretation, particularly in legislation such as this that is designed to benefit the victims of crime. Now, contextually, we advance the argument that a disjunctive interpretation is open. If one then applies the purposive approach to the interpretation, again, we say a disjunctive - - -

GUMMOW J: Yes, but what is the purpose?

MR BELLANTO: The purpose is to compensate - - -

GUMMOW J: You just go round in circles. You start answering the question in terms of your perception of the purpose.

MR BELLANTO: The purpose is expressed in the legislation. That has to be the starting point, and then you discern from that who are the victims and what is their entitlement, and the table sets out, in some detail, the injuries that victims can have - - -

GUMMOW J: What do you say the purpose is, again?

MR BELLANTO: To compensate victims of crime.

GUMMOW J: Full stop.

MR BELLANTO: That is the way it is expressed. If one goes to section 3 of the Act:

The objects of this Act are as follows:
(a) to give effect to a statutory scheme of compensation for victims of crimes of violence –

Now, that involves an approach, generally, to the interpretation of the legislation that is remedial, and on that point may I - - -

GUMMOW J: Yes, but the question is, what is contained within the statutory scheme, so how does it help you?

MR BELLANTO: That is so. The statutory scheme has to be viewed in the context of what is the scheme introduced for, why is it there, and it is there to benefit, in the appropriate case, victims of crime. May I take your Honours briefly to the case of Bermingham v Corrective Services Commission of New South Wales (1988-1989) 15 NSWLR 292 at 302, a decision of the Court of Appeal in New South Wales. Your Honour, the presiding judge, at the final page in the judgment, referred to – and I refer to the passage, the penultimate large paragraph, commencing on the second last page. Your Honour referred to the Interpretation Act, section 33, and your Honour’s judgment in Kingston v Keprose, and then, further down in the passage, commencing with the paragraph:

Once the court concludes that the grammatical meaning does not accord with the purpose of the legislation . . . it is necessary, to put a strained interpretation upon some words which have been inadvertently used”.

KIRBY J: There is no doubt that the acting Chief Justice’s judgment in Kingston v Keprose has had a tremendous effect throughout Australia and is adopted in this Court, but it still remains, as Justice Gummow said, to ascertain the purpose, and the purpose in section 3 refers internally to the statutory scheme and then you have to look to how that is expressed. Once you do that, you have to give effect to the words as they are expressed. You cannot just overlook them.

MR BELLANTO: I appreciate that, your Honour. Your Honour, the difficulty is that, for example, clause 8 in the schedule is expressed disjunctively. This was a matter that Justice McClellan referred to in the court below.

KIRBY J: Now, where is this? Is this in the table?

McHUGH ACJ: No, not in table. Page 52, clause 8.

KIRBY J: I see, yes.

MR BELLANTO: Your Honour will note that clause 8 refers to injuries not specifically mentioned in the table. It provides an opportunity for the assessor to include as a category of compensation injuries not specifically mentioned in the table - - -

McHUGH ACJ: But it cuts both ways, does it not? You say it shows a certain policy. On the other hand, your opponent says it shows when the legislature wanted to distinguish between the symptoms and the disability, it did so expressly.

MR BELLANTO: That is true, and it does cut both ways. However - - -

KIRBY J: Can I just understand your cut? I can see the other – expressio unius is such a powerful idea that when you see the “or” and then you say, “Well, why should I give ‘and’ the meaning ‘or’ when it is not used?” Now, how do you answer that?

MR BELLANTO: If the interpretation is conjunctive in relation to 5(a), it should be conjunctive in relation to clause 8(b), but it is disjunctive. That is a matter that was referred to in the court below.

KIRBY J: Well, you can reconcile that by saying, “Ordinarily, for an injury not mentioned, it is disjunctive, but we hate shock and we are going to make shock the special barrier, because we are very suspicious of it”. That has been the history of our law, I am afraid.

MR BELLANTO: Your Honour, can I just take your Honour very briefly to the second reading speech, because in the second reading speech – it was referred to by my learned friend – the expression “fair equitable and efficient” is used - - -

KIRBY J: Yes, but, as Justice Hayne says, these are the sorts of things that one sees every time we are taken to second reading speeches, as well as the word “decisive” – that is another favourite. “We are decisive, we are fair, we are equitable, we are efficient, vote for us”.

MR BELLANTO: But we have not a lot of money to pay for it.

McHUGH ACJ: How long will your argument take, Mr Bellanto?

MR BELLANTO: Your Honour, I am virtually finished. I do not have a lot more to say.

McHUGH ACJ: Well, we will sit on.

MR BELLANTO: We make the point in our written submissions that if your Honour Justice Kirby’s approach is what the draftsperson had in mind here, it does disadvantage a shock claimant here, because, if one goes to the table – and I will not take your Honours to the table in detail – there is a raft of injuries with relevant amounts for compensation, and a lot of them are far - on a comparative basis with shock.

KIRBY J: But this all fits in with my theory that English-speaking people hate shock; they are very suspicious of it. Now I may be wrong in this, and if I am wrong, please take it out of my mind, but it has been said many times in nervous shock cases, and it has been said even more often in academic commentary on the common law decisions in nervous shock cases, why do we make this distinction, why have we done so, for a century and more? Answer, because we have not known all that much about psychiatry and we are not very sympathetic when we know.

MR BELLANTO: Yes. Well, your Honour, if that is the position, then we say it is discriminatory. It should be interpreted in a way that gives effect to compensating victims of crime and not discriminate against victims of crime, particularly the most vulnerable section of the community, elderly people, who may have a raft of symptoms, but because they are retired, because they are reclusive, do not work, do not have educational needs, have no sexual function, they cannot get compensation.

HAYNE J: Is that right? Can I take you to page 76 of the print, a provision to which I think we have not been taken, namely the dictionary. You see the definition of “injury” at the foot of the page includes item (b) “nervous shock” – whether that is used in contradistinction to “shock” is something the drafter might be pinned to the wall and asked, but (c):

mental illness or disorder (whether or not arising from nervous shock)

Now, I am not aware of where elsewhere in the Act we find any explicit reference to mental illness or disorder, but some at least, perhaps many, of the cases which you posit of the solitary aged victim may give rise to compensable injury in the form of mental disorder. What are we to make of the apparent distinction, possible distinction drawn between nervous shock and mental illness or disorder?

MR BELLANTO: Well, he or she may have a disorder that is manifested by one or more of the symptoms in (c) and (d).

HAYNE J: And is a clause 8 case rather than a clause 5 case. I do not know.

MR BELLANTO: I think what your Honour Justice Hayne has raised gives rise to the point that we advance in relation to this legislation, that there may be ambiguities of interpretation, there may be alternative constructions, and that seems to have arisen by reason of the divergence of opinion in the court below. As such, where that exists, then the most beneficial interpretation should be applied. That, in a nutshell, is really our submission. May it please the Court.

KIRBY J: Yes. You did not get a special costs order in the special leave application, did you? It is unusual for the State to have been given the right of special leave without undertaking that it would pay your costs in any event. Was that what - - -

MR BELLANTO: I understand that is the position, your Honour.

KIRBY J: I see.

MR BELLANTO: Perhaps my friend may wish to clarify it, but that is our understanding.

KIRBY J: I saw that mentioned somewhere. Was that the condition in the Court of Appeal?

MR BELLANTO: I am not sure, your Honour.

KIRBY J: It may have been in the special leave transcript. But, anyway, Mr Solicitor can clarify it. I would not expect him, in clarifying this area of the law for all those cases, to be seeking to get costs out of a respondent.

MR SEXTON: There are only two matters, your Honours. As I understand it, the appellants are meeting the respondent’s costs of the appeal.

GUMMOW J: That is some arrangement outside Court orders, is it?

MR SEXTON: Yes, and we have sought no order as to costs in our notice of appeal. Just two minor matters, your Honours. One is that we will send a note about the commencement of the legislation. Secondly, if I could hand up copies of the second reading speech in relation to the 1998 legislation, the amending Act. At the bottom of the first page and the first paragraph of the second there is some reference to the substituted provisions in relation to shock.

HAYNE J: And are we not to be favoured with anything about the dictionary, Mr Solicitor?

MR SEXTON: Your Honour, as far as I can see, there is no reference to mental illness elsewhere in the legislation.

HAYNE J: No, but it comes in through clause 8, it seems to me.

MR SEXTON: Yes, it may, your Honour, that is right.

HAYNE J: Mr Solicitor, you would have us construe this Act. You would have us construe it without taking us to section 4, without taking us to the dictionary. I mean, what are we meant to do, Mr Solicitor?

MR SEXTON: No, your Honour, but there are overlapping categories. I did say that it seems to us that it is not a seamless piece of legislation, and your Honour has found another example of that perhaps.

HAYNE J: Other than rewarding myself with that, what am I meant to do with it when I come to try to write a judgment, Mr Solicitor? What do you say I do about it? Ignore it? What is your submission?

MR SEXTON: Well, your Honour, we do not think it provides any assistance.

McHUGH ACJ: Why not? I would have thought it provided a lot of assistance for yourself. Supposing somebody suffers temporary insanity. They may have no disabilities or vice versa, no symptoms, and they are entitled to compensation under clause 8.

MR SEXTON: I do not mean it provides no assistance in the sense that it indicates that there may be claims available under the legislation beyond what my learned friend suggests.

McHUGH ACJ: But the fact that the condition is expressed disjunctively seems to support you. There is a form of mental illness other than nervous shock where compensation can be payable on the either/or basis, whereas for some reason nervous shock, perhaps for the reason Justice Kirby has been outlining - - -

KIRBY J: Several times.

McHUGH ACJ: - - - you have this dual condition.

MR SEXTON: Yes, your Honour. We do not have anything else to add.

McHUGH ACJ: Thank you, Mr Solicitor. The Court will reserve its judgment in this matter. Court will adjourn till tomorrow morning.

AT 12.55 PM THE MATTER WAS ADJOURNED