ADCO Constructions Pty Ltd v Goudappel and Anor - [2013] HCATrans 250

[2013] HCATrans 250

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S96 of 2013

B e t w e e n -
ADCO CONSTRUCTIONS PTY LTD ABN 001 044 391
Applicant
and
RONALD GOUDAPPEL
First Respondent
WORKCOVER AUTHORITY OF NSW
Second Respondent
Application for special leave to appeal

KIEFEL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 OCTOBER 2013, AT 11.33 AM

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

MR J.B. SIMPKINS, SC: If your Honour please, I appear with MR E.G. ROMANIUK 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, but supporting the grant of special leave. (instructed by WorkCover Authority of NSW)

KIEFEL J: Yes, Mr Jackson.

MR JACKSON: Your Honours, the application for special leave concerns the application of clause 11 of the Workers Compensation Amendment (Transitional) Regulation 2012. It is a provision of considerable practical importance, as appears from paragraph 3 of the affidavit of Geniere Aplin that your Honours will see at page 63 of the application book. Your Honours, its importance in quantum terms may seem different to the respondent but that is why there is the position as to costs stated at paragraph 29, page 61 where we would bear the costs.

Your Honours, to see the effect of clause 11 may I go first to the start of the several provisions to which I wish to take your Honours? Your Honours will see that if one goes first to section 66 of the Workers Compensation Act 1987 in the form which it took in 2012. You will see that in the materials book behind tab 1 at page 20.

Your Honours will see that section 66(1) conferred an entitlement to lump sum compensation for impairment resulting from a compensable injury. The quantum turned on the percentage of impairment and there was no minimum percentage. The respondent was assessed as having a 6 per cent impairment - your Honours will see that in the President’s ruling at paragraphs 4 and 5, page 3. I do not think I need take your Honours to that. The result was that the then section 66(2)(a) applied and there would have been an award in his favour on that basis.

That Act to which I have just taken your Honours was amended by the amending Act of 2012 which performed a number of functions. The first was that a substituted section 66 came into operation, your Honours will see behind tab 2 of the materials at page 36 - the numbers, your Honours, I should have said, at the bottom of the page. You will see in…

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: [2013] HCATrans 250
Decision Date

CaseChat Overview and Summary

ADCO Constructions Pty Ltd (ADCO) appealed to the High Court of Australia against a decision of the Queensland Court of Appeal, which had affirmed a judgment in favour of Mr Goudappel and his insurer, CGU Insurance Ltd. The dispute concerned the interpretation of a clause in a building contract that provided for an extension of time for completion 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 proper 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 clause required the adverse weather to be of such a nature that it would not have been reasonably foreseen by an experienced builder, or whether it was sufficient that the weather experienced was, in fact, adverse and caused a delay.

Kiefel and Keane JJ held that the contractual provision did not require the adverse weather to be unforeseeable. Their Honours reasoned that the plain language of the clause referred to weather that was "adverse", meaning it was of a nature that caused delay. The contract did not impose a requirement of unforeseeability, and to read such a requirement into the clause would be to add words that were not present. The appeal was therefore allowed, and the judgment of the Court of Appeal was set aside.

Orders