Criminal injuries compensation

October 30th, 2015

In December 2014, the Court of Appeal considered a claim for criminal injuries compensation by a person who was assaulted in the course of his employment. A criminal injuries assessor awarded the person $75,000 compensation under the Act. Because he was injured at work, he was also entitled to workers’ compensation payments which he received in amounts totalling $257,000.

The District Court held that the persons workers compensation payments must be accounted for in the assessment of any compensation payable as criminal injuries compensation. The person’s workers compensation payments exceeded the amount he was assessed as being entitled to under the Act and accordingly, he should not have been awarded anything.

On appeal to the Court of Appeal, the Court agreed with the District Court and made the following useful observation on the interpretation of the Act;

The proper construction of the Act – principles

A number of the principles relevant to the proper construction of the Act were outlined in Attorney General (WA) v Her Honour Judge Schoombee [29] – [44]. It is unnecessary to repeat them here, other than to reiterate that with respect to limiting provisions of the Act (such as s 42(3)), the observations in [41] of that decision are pertinent:

In a similar legislative context, Spigelman CJ observed in Victims Compensation Fund v Brown [2002] NSWCA 155; (2002) 54 NSWLR 668:

‘With respect to a clause intended to be limiting, it is not appropriate to apply the principle of statutory construction that beneficial legislation should be construed liberally…

In the present proceedings, the Respondent submitted that the purpose was to compensate victims. Even if I were to accept a legislative purpose stated at that level of generality, that would not entail that any ambiguity must be construed in such a way as to maximise compensation… In any event, the very specificity of the provisions of the legislation indicate that the legislative purpose is to provide compensation in accordance with the Act and not otherwise [8] – [10].’

(Although Spigelman CJ was in dissent, his reasoning was endorsed by the High Court in Victims Compensation Fund Corp v Brown [2003] HCA 54; (2003) 201 ALR 260.)

It is also significant, in light of the appellant’s submissions, to recall here the observations of French CJ and Hayne J in Certain Lloyd’s Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [23] – [26]:

It is as well to begin consideration of this issue by re-stating some basic principles. It is convenient to do that by reference to the reasons of the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue:

‘This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.’

The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, ‘[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute’ (emphasis added). That is, statutory construction requires deciding what is the legal meaning of the relevant provision ‘by reference to the language of the instrument viewed as a whole’, and ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’.

Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure. Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted. It is important in this respect, as in others, to recognise that to speak of legislative ‘intention’ is to use a metaphor. Use of that metaphor must not mislead. ‘[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have’ (emphasis added). And as the plurality went on to say in Project Blue Sky:

‘Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.’

To similar effect, the majority in Lacey v Attorney-General (Qld) said:

‘Ascertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts. (footnote omitted.)’
The search for legal meaning involves application of the processes of statutory construction. The identification of statutory purpose and legislative intention is the product of those processes, not the discovery of some subjective purpose or intention.

A second and not unrelated danger that must be avoided in identifying a statute’s purpose is the making of some a priori assumption about its purpose. The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions. As Spigelman CJ, writing extra-curially, correctly said:

‘Real issues of judicial legitimacy can be raised by judges determining the purpose or purposes of Parliamentary legislation. It is all too easy for the identification of purpose to be driven by what the particular judge regards as the desirable result in a specific case. (emphasis added.)’

And as the plurality said in Australian Education Union v Department of Education and Children’s Services:

‘In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose. (footnote omitted.)’
(footnotes omitted) See also City of Kwinana v Lamont [2014] WASCA 112 [47].

Further, statutes should generally be read in the ordinary way that a document is read, that is from the beginning onwards: Patman v Fletchers Fotographics Pty Ltd (1984) 6 IR 471, 474 – 475.

Disposition

The appellant’s submissions should not be accepted, for the following reasons.

Under s 3 of the Act, the definition of ‘compensation award’ is to be applied in s 42 unless the contrary intention appears. The suggestion that the term ‘compensation award’ in s 42(3) should be read as meaning a ‘notional award’ or an ‘assessment award’ faces two fundamental obstacles. First, it involves reading words into s 42(3) which are not there. Secondly, there is no inconsistency in using the defined term ‘compensation award’ in s 42(3). On the contrary, that is the obvious and natural meaning to be given to that term in s 42(3) having regard to the text and structure of the Act as a whole.

In terms of the structure of the Act, s 36 – s 40 provide a range of circumstances where there is a prohibition on the making of a ‘compensation award’. Those provisions operate in the circumstances specified to preclude the making of any ‘compensation award’ at all. Their location within pt 4 tends to confirm that the assessor is not required to consider the question of deductions under s 42 unless and until he or she has determined whether or not a ‘compensation award’ should be made and if so the amount of any such award.

Also, the Act distinguishes between a ‘compensation award’, on the one hand, and the payment of any compensation awarded under the Act, and an amount of compensation ‘awarded’ to the victim under the compensation award, on the other: s 46 and s 68(1)(d). These provisions confirm that the broad structure for payment of compensation under the Act involves, first, the determination of whether, and if so in what amount, a ‘compensation award’ may be made; secondly, the deduction of any amounts from that ‘compensation award’ required under s 42; and thirdly, the payment or ‘awarding’ of an amount of compensation under the Act. It is only the third figure which is the subject of the charge on consolidated revenue. The appellant’s submissions conflate these three steps and, in substance, treat a ‘compensation award’ under s 30 as the amount to be paid or awarded as compensation under the Act, subject only to s 31(1), rather than the amount upon which other provisions operate before a final amount of compensation is determined and then paid or ‘awarded’ (s 46).

Further, there is no foothold in the language of s 42(3) for an argument to the effect that s 42(3) is addressing a notional compensation award which is split into different elements to which the deductions in s 42 are to be applied differentially. Under s 42(3) a (single) ‘compensation award’ in relation to any injury or loss is the subject of the deduction. The deduction is (relevantly) ‘any amount’ that the victim has received. The words ‘injury or loss’ cannot reasonably be interpreted as signifying that the ‘compensation award’ is to be disaggregated into a notional award for ‘injury’, and a notional award for ‘loss’, for the purposes of the deduction required by that subsection (see written submissions pars 30 – 31). It is true that s 42(2) refers only to ‘loss’, but that is because it is specifically addressing a particular category of insurance contract. It provides no foundation for regarding a ‘compensation award’ in s 42(3) as a notional award, and for disaggregating the notional award into different notional sub-awards for injury and loss. The words ‘injury or loss suffered by a victim or a close relative of a deceased victim’ in s 42(3) reflect the language of s 30 (and in particular s 30(1) and (3)). The language is not tautological, but is evidently used to make it plain that s 42(3) is addressing a ‘compensation award’ made under s 30 (read with s 31).

Also, the aggregation to which s 31(1) refers is the amount which may be awarded under subsection (1) (for injury and any loss suffered by the victim) and subsection (3) (for the loss suffered by the relatives of the deceased victim) of s 30. It provides no basis for the appellant’s construction.

Also, the proposition that the purpose or object of the Act is, generally speaking, to provide compensation out of the public purse for all victims of crime, is incorrect. The provisions of the Act, construed in their ordinary and natural meaning, do not reveal that that is the purpose of the legislature. Rather, the amicus was correct to observe that the policy of the Act is evidently to provide a publicly funded means by which victims of crime can receive some payments of compensation for injury or loss incurred as a result of criminal activity ‘in some circumstances’ (as the long title indicates). It does so on the basis that there is to be a deduction from the award of the amount of compensation or damages which a victim receives from another source. In that manner, the limited public resources engaged by the Act are directed to victims of crime who would not otherwise be compensated for their injury or loss. This is confirmed by s 21, which provides, in effect, that an assessor may defer dealing with the question of compensation and require the victim first to take steps to recover any amounts to which he or she may be entitled independently of the operation of the Act. A provision of that kind indicates that the legislature was not merely concerned with the avoidance of ‘double dipping’ (itself a term the meaning of which is dependent upon context) as the appellant contended, but more broadly intended that the victim should exhaust other means of compensation available to him or her before there is any recourse to payment from the public purse.

The anomalies to which the appellant referred assumed, rather than demonstrated, the correctness of the appellant’s construction of the Act. The example given by the appellant, referred to in [32] above, appears to serve no useful illustration for present purposes. Victim A has received compensation from alternative sources. Victim B has not. Section 42(3) could have no application to victim B whether (adopting the language of the appellant’s submissions) s 31(1) is ‘applied’ prior to s 42, or in the ‘reverse order’.

Moreover, the appellant’s construction would produce a fundamental obstacle to the coherent operation of the Act. Section 42(3) and s 68 deal in substance with the same subject matter – the receipt of an alternative source of payment by way of compensation or damages or insurance. The only difference between the two is essentially that of timing – whether the alternative payment is received before or after an amount of compensation is awarded under the Act. On the appellant’s construction, s 42(3) would operate so that if the ‘notional’ compensation award was say $200,000, and the alternative source of compensation, allegedly deductible under s 42(3), was say $120,000, then the victim would receive an award of compensation under the Act of $75,000 ($80,000 reduced to the maximum sum of $75,000). If however the alternative amount of compensation did not come to light or for any other reason was not deducted under s 42(3) prior to an amount of compensation being awarded, then the victim would still receive $75,000 (the ‘notional’ award of $200,000 reduced to the maximum sum of $75,000), but would subsequently be required to pay $75,000 to the State under s 68(1), leaving the victim with nothing. In other words, the substantive relief provided by the operation of the Act would depend upon an accident of timing in otherwise identical circumstances.

The appellant sought to explain the inconsistency on two bases. First, that it would not likely arise much as a matter of practice. Secondly, that the disparity in outcome accorded with the common law principle that damages are awarded once and for all, and that subsequent events do not alter the amount of compensation awarded by way of a judgment.

Neither submission can be accepted. It is evident that s 42 and s 68 were intended to operate harmoniously. The appellant’s first point, that the legislature objectively intended an inconsistency in the operation between the two, on the basis that the inconsistency would only arise infrequently in practice, has nothing to commend it. As to the second point, the analogy appears at best to be irrelevant and, at worst (from the appellant’s point of view), to be a point against the appellant. It is irrelevant because the question is whether the provisions of the Act operate harmoniously as a whole; not whether the common law produces a similar anomalous result in certain circumstances. The point is against the appellant’s argument in that in the example given, after the maximum amount is awarded under the Act, a subsequent event in effect extinguishes the earlier award.

Some final observations may be made. First, the extrinsic material to which the appellant referred does not assist the appellant. The effect of s 42(3) is to prevent ‘double dipping’ in the sense that other sources of compensation are to be deducted from a ‘compensation award’. In any event, the extrinsic material could not control the meaning of the words used in the statute. Secondly, the amicus said that the primary judge’s construction of s 42 was consistent with a number of District Court decisions in relation to s 42 of the Act and its statutory predecessors. The cases to which he referred included Baker v Assessor of Criminal Injuries Compensation (1998) 20 SR (WA) 377, 381; Reed v Reed [2002] WADC 11 [2], [4]; and Curran v Champion [2012] WADC 9 [108] – [109]. It is unnecessary to examine the correctness of that proposition for the disposition of this application. Thirdly, counsel for the appellant referred to certain decisions which, he said, supported the construction being advanced on appeal, particularly Re Korber (1992) 9 SR (WA) 32 (Clarke DCJ). Again, it is unnecessary to consider those cases here save to say that they have no persuasive effect insofar as they reflect the erroneous construction advanced by the appellant.

Criminal injuries compensation

October 30th, 2015

In December 2014, the Court of Appeal considered a claim for criminal injuries compensation by a person who was assaulted in the course of his employment. A criminal injuries assessor awarded the person $75,000 compensation under the Act. Because he was injured at work, he was also entitled to workers’ compensation payments which he received in amounts totalling $257,000.

The District Court held that the persons workers compensation payments must be accounted for in the assessment of any compensation payable as criminal injuries compensation. The person’s workers compensation payments exceeded the amount he was assessed as being entitled to under the Act and accordingly, he should not have been awarded anything.

On appeal to the Court of Appeal, the Court agreed with the District Court and made the following useful observation on the interpretation of the Act;

The proper construction of the Act – principles

A number of the principles relevant to the proper construction of the Act were outlined in Attorney General (WA) v Her Honour Judge Schoombee [29] – [44]. It is unnecessary to repeat them here, other than to reiterate that with respect to limiting provisions of the Act (such as s 42(3)), the observations in [41] of that decision are pertinent:In a similar legislative context, Spigelman CJ observed in Victims Compensation Fund v Brown [2002] NSWCA 155; (2002) 54 NSWLR 668:

‘With respect to a clause intended to be limiting, it is not appropriate to apply the principle of statutory construction that beneficial legislation should be construed liberally…

In the present proceedings, the Respondent submitted that the purpose was to compensate victims. Even if I were to accept a legislative purpose stated at that level of generality, that would not entail that any ambiguity must be construed in such a way as to maximise compensation… In any event, the very specificity of the provisions of the legislation indicate that the legislative purpose is to provide compensation in accordance with the Act and not otherwise [8] – [10].’

(Although Spigelman CJ was in dissent, his reasoning was endorsed by the High Court in Victims Compensation Fund Corp v Brown [2003] HCA 54; (2003) 201 ALR 260.)

It is also significant, in light of the appellant’s submissions, to recall here the observations of French CJ and Hayne J in Certain Lloyd’s Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [23] – [26]:

It is as well to begin consideration of this issue by re-stating some basic principles. It is convenient to do that by reference to the reasons of the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue:

‘This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.’

The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, ‘[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute’ (emphasis added). That is, statutory construction requires deciding what is the legal meaning of the relevant provision ‘by reference to the language of the instrument viewed as a whole’, and ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’.

Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure. Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted. It is important in this respect, as in others, to recognise that to speak of legislative ‘intention’ is to use a metaphor. Use of that metaphor must not mislead. ‘[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have’ (emphasis added). And as the plurality went on to say in Project Blue Sky:

‘Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.’

To similar effect, the majority in Lacey v Attorney-General (Qld) said:

‘Ascertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts. (footnote omitted.)’
The search for legal meaning involves application of the processes of statutory construction. The identification of statutory purpose and legislative intention is the product of those processes, not the discovery of some subjective purpose or intention.

A second and not unrelated danger that must be avoided in identifying a statute’s purpose is the making of some a priori assumption about its purpose. The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions. As Spigelman CJ, writing extra-curially, correctly said:

‘Real issues of judicial legitimacy can be raised by judges determining the purpose or purposes of Parliamentary legislation. It is all too easy for the identification of purpose to be driven by what the particular judge regards as the desirable result in a specific case. (emphasis added.)’
And as the plurality said in Australian Education Union v Department of Education and Children’s Services:

‘In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose. (footnote omitted.)’
(footnotes omitted) See also City of Kwinana v Lamont [2014] WASCA 112 [47].

Further, statutes should generally be read in the ordinary way that a document is read, that is from the beginning onwards: Patman v Fletchers Fotographics Pty Ltd (1984) 6 IR 471, 474 – 475.

Disposition

The appellant’s submissions should not be accepted, for the following reasons.Under s 3 of the Act, the definition of ‘compensation award’ is to be applied in s 42 unless the contrary intention appears. The suggestion that the term ‘compensation award’ in s 42(3) should be read as meaning a ‘notional award’ or an ‘assessment award’ faces two fundamental obstacles. First, it involves reading words into s 42(3) which are not there. Secondly, there is no inconsistency in using the defined term ‘compensation award’ in s 42(3). On the contrary, that is the obvious and natural meaning to be given to that term in s 42(3) having regard to the text and structure of the Act as a whole.

In terms of the structure of the Act, s 36 – s 40 provide a range of circumstances where there is a prohibition on the making of a ‘compensation award’. Those provisions operate in the circumstances specified to preclude the making of any ‘compensation award’ at all. Their location within pt 4 tends to confirm that the assessor is not required to consider the question of deductions under s 42 unless and until he or she has determined whether or not a ‘compensation award’ should be made and if so the amount of any such award.

Also, the Act distinguishes between a ‘compensation award’, on the one hand, and the payment of any compensation awarded under the Act, and an amount of compensation ‘awarded’ to the victim under the compensation award, on the other: s 46 and s 68(1)(d). These provisions confirm that the broad structure for payment of compensation under the Act involves, first, the determination of whether, and if so in what amount, a ‘compensation award’ may be made; secondly, the deduction of any amounts from that ‘compensation award’ required under s 42; and thirdly, the payment or ‘awarding’ of an amount of compensation under the Act. It is only the third figure which is the subject of the charge on consolidated revenue. The appellant’s submissions conflate these three steps and, in substance, treat a ‘compensation award’ under s 30 as the amount to be paid or awarded as compensation under the Act, subject only to s 31(1), rather than the amount upon which other provisions operate before a final amount of compensation is determined and then paid or ‘awarded’ (s 46).

Further, there is no foothold in the language of s 42(3) for an argument to the effect that s 42(3) is addressing a notional compensation award which is split into different elements to which the deductions in s 42 are to be applied differentially. Under s 42(3) a (single) ‘compensation award’ in relation to any injury or loss is the subject of the deduction. The deduction is (relevantly) ‘any amount’ that the victim has received. The words ‘injury or loss’ cannot reasonably be interpreted as signifying that the ‘compensation award’ is to be disaggregated into a notional award for ‘injury’, and a notional award for ‘loss’, for the purposes of the deduction required by that subsection (see written submissions pars 30 – 31). It is true that s 42(2) refers only to ‘loss’, but that is because it is specifically addressing a particular category of insurance contract. It provides no foundation for regarding a ‘compensation award’ in s 42(3) as a notional award, and for disaggregating the notional award into different notional sub-awards for injury and loss. The words ‘injury or loss suffered by a victim or a close relative of a deceased victim’ in s 42(3) reflect the language of s 30 (and in particular s 30(1) and (3)). The language is not tautological, but is evidently used to make it plain that s 42(3) is addressing a ‘compensation award’ made under s 30 (read with s 31).

Also, the aggregation to which s 31(1) refers is the amount which may be awarded under subsection (1) (for injury and any loss suffered by the victim) and subsection (3) (for the loss suffered by the relatives of the deceased victim) of s 30. It provides no basis for the appellant’s construction.

Also, the proposition that the purpose or object of the Act is, generally speaking, to provide compensation out of the public purse for all victims of crime, is incorrect. The provisions of the Act, construed in their ordinary and natural meaning, do not reveal that that is the purpose of the legislature. Rather, the amicus was correct to observe that the policy of the Act is evidently to provide a publicly funded means by which victims of crime can receive some payments of compensation for injury or loss incurred as a result of criminal activity ‘in some circumstances’ (as the long title indicates). It does so on the basis that there is to be a deduction from the award of the amount of compensation or damages which a victim receives from another source. In that manner, the limited public resources engaged by the Act are directed to victims of crime who would not otherwise be compensated for their injury or loss. This is confirmed by s 21, which provides, in effect, that an assessor may defer dealing with the question of compensation and require the victim first to take steps to recover any amounts to which he or she may be entitled independently of the operation of the Act. A provision of that kind indicates that the legislature was not merely concerned with the avoidance of ‘double dipping’ (itself a term the meaning of which is dependent upon context) as the appellant contended, but more broadly intended that the victim should exhaust other means of compensation available to him or her before there is any recourse to payment from the public purse.

The anomalies to which the appellant referred assumed, rather than demonstrated, the correctness of the appellant’s construction of the Act. The example given by the appellant, referred to in [32] above, appears to serve no useful illustration for present purposes. Victim A has received compensation from alternative sources. Victim B has not. Section 42(3) could have no application to victim B whether (adopting the language of the appellant’s submissions) s 31(1) is ‘applied’ prior to s 42, or in the ‘reverse order’.
Moreover, the appellant’s construction would produce a fundamental obstacle to the coherent operation of the Act. Section 42(3) and s 68 deal in substance with the same subject matter – the receipt of an alternative source of payment by way of compensation or damages or insurance. The only difference between the two is essentially that of timing – whether the alternative payment is received before or after an amount of compensation is awarded under the Act. On the appellant’s construction, s 42(3) would operate so that if the ‘notional’ compensation award was say $200,000, and the alternative source of compensation, allegedly deductible under s 42(3), was say $120,000, then the victim would receive an award of compensation under the Act of $75,000 ($80,000 reduced to the maximum sum of $75,000). If however the alternative amount of compensation did not come to light or for any other reason was not deducted under s 42(3) prior to an amount of compensation being awarded, then the victim would still receive $75,000 (the ‘notional’ award of $200,000 reduced to the maximum sum of $75,000), but would subsequently be required to pay $75,000 to the State under s 68(1), leaving the victim with nothing. In other words, the substantive relief provided by the operation of the Act would depend upon an accident of timing in otherwise identical circumstances.

The appellant sought to explain the inconsistency on two bases. First, that it would not likely arise much as a matter of practice. Secondly, that the disparity in outcome accorded with the common law principle that damages are awarded once and for all, and that subsequent events do not alter the amount of compensation awarded by way of a judgment.

Neither submission can be accepted. It is evident that s 42 and s 68 were intended to operate harmoniously. The appellant’s first point, that the legislature objectively intended an inconsistency in the operation between the two, on the basis that the inconsistency would only arise infrequently in practice, has nothing to commend it. As to the second point, the analogy appears at best to be irrelevant and, at worst (from the appellant’s point of view), to be a point against the appellant. It is irrelevant because the question is whether the provisions of the Act operate harmoniously as a whole; not whether the common law produces a similar anomalous result in certain circumstances. The point is against the appellant’s argument in that in the example given, after the maximum amount is awarded under the Act, a subsequent event in effect extinguishes the earlier award.

Some final observations may be made. First, the extrinsic material to which the appellant referred does not assist the appellant. The effect of s 42(3) is to prevent ‘double dipping’ in the sense that other sources of compensation are to be deducted from a ‘compensation award’. In any event, the extrinsic material could not control the meaning of the words used in the statute. Secondly, the amicus said that the primary judge’s construction of s 42 was consistent with a number of District Court decisions in relation to s 42 of the Act and its statutory predecessors. The cases to which he referred included Baker v Assessor of Criminal Injuries Compensation (1998) 20 SR (WA) 377, 381; Reed v Reed [2002] WADC 11 [2], [4]; and Curran v Champion [2012] WADC 9 [108] – [109]. It is unnecessary to examine the correctness of that proposition for the disposition of this application. Thirdly, counsel for the appellant referred to certain decisions which, he said, supported the construction being advanced on appeal, particularly Re Korber (1992) 9 SR (WA) 32 (Clarke DCJ). Again, it is unnecessary to consider those cases here save to say that they have no persuasive effect insofar as they reflect the erroneous construction advanced by the appellant.