ADCO Constructions Pty Ltd v Goudappel and Anor - [2014] HCATrans 67

[2014] HCATrans 067

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S201 of 2013

B e t w e e n -
ADCO CONSTRUCTIONS PTY LTD ABN 001 044 391
Appellant
and
RONALD GOUDAPPEL
First Respondent
WORKCOVER AUTHORITY OF NSW
Second Respondent

FRENCH CJ
CRENNAN J
KIEFEL J
GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 1 APRIL 2014, AT 10.17 AM

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friends, MR S.L.C. FLETT and MR W.A.D. EDWARDS, for the appellant. (instructed by Moray & Agnew Solicitors)

MR J.B. SIMPKINS, SC: If your Honours please, I appear with MR E.G. ROMANIUK, SC and MR L.G. MORGAN, for the first respondent. (instructed by Leitch Hasson Dent Solicitors)

MR J.K. KIRK, SC: May it please the Court, I appear with my learned friend, MR S.J. FREE, for the second respondent in support of the appeal. (instructed by Workcover Authority of NSW)

FRENCH CJ: Yes, Mr Jackson.

MR JACKSON: Thank you, your Honours. Your Honours will have our outline of submissions.

FRENCH CJ: Thank you. Yes, Mr Jackson.

MR JACKSON: Your Honours, this is a case where there is some complication in the series of legislative events, if I could call them that, which have taken place but the case turns, ultimately, on the effect to be attributed to clause 11 of Schedule 1 to the Workers Compensation Amendment (Transitional) Regulation 2012. May I indicate the way in which we would seek to approach the case? That is, first, by referring to the provisions on the operation of which we rely; secondly, by reference and challenge to the views expressed by the Court of Appeal and, thirdly, by going to the submissions relied on on behalf of the first respondent?

Could I come immediately, your Honours, to the first of those matters? As your Honours will see from paragraph 6 of our submissions in‑chief, the first respondent, who is one of our senior employees, was injured in the course of his employment by us and that occurred on 17 April 2010. Two days later he claimed workers compensation for lost wages and medical expenses. Those were paid. In July 2011, a year afterwards, of course, he underwent an examination for the purpose of an assessment of his whole person impairment resulting from the injury and the figure arrived at was six per cent.

Now, that gave him, your Honours, an entitlement to a sum of $8,250 for lump sum compensation pursuant to section 66 of the Workers Compensation Act. May I take your Honours to that provision? Your Honours should have a bundle entitled Appellant’s Substantive List of Legislation. That has, your Honours, in the bottom right‑hand corner, a page number through it – page numbers throughout – and may I use those?

Your Honours, section 66 – prior to its amendment – can be seen at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] HCATrans 67
Decision Date

CaseChat Overview and Summary

ADCO Constructions Pty Ltd (ADCO) appealed to the High Court of Australia against a decision of the New South Wales Court of Appeal, which had affirmed a judgment in favour of Mr Goudappel and his wife. The dispute concerned the proper interpretation of a clause in a building contract that provided for an extension of time for completion of works due to adverse weather. ADCO argued that the Court of Appeal had erred in its construction of this clause.

The central legal issue before the High Court was the correct interpretation of a contractual provision that granted an extension of time for delays caused by "adverse weather". Specifically, the Court had to determine whether the adverse weather had to be of such a nature that it could not reasonably have been foreseen or guarded against, or whether the clause operated irrespective of foreseeability or preventability.

The High Court held that the contractual clause did not require the adverse weather to be unforeseeable or unavoidable. The Court reasoned that the plain language of the clause, which referred to "adverse weather", did not impose any such qualification. It was sufficient that the weather experienced was adverse and caused a delay to the works. The Court emphasised the importance of adhering to the literal meaning of contractual terms unless there was a clear indication to the contrary.

The appeal was allowed, and the judgment of the New South Wales Court of Appeal was set aside.

Orders