Amalgamated Wireless (A/sia) Ltd v Philpott - [1961] HCA 31

HIGH COURT OF AUSTRALIA

Dixon C.J., Kitto, Taylor and Windeyer JJ.

AMALGAMATED WIRELESS (A/SIA) LTD. v. PHILPOTT

(1961) 110 CLR 617

1 June 1961

Workers' Compensation (N.S.W.)

Workers' Compensation (N.S.W.)—"Injury"—Injury on periodic journey—Aggravation of disease—Journey a contributing factor—Workers' Compensation Act, 1926-1960 (N.S.W.), s. 6 (1) "Injury", par. (b).*

Decision

June 1.
THE COURT delivered the following written judgment:-
This appeal turns upon the amendment made by s. 2 (1) (a) of the Workers' Compensation (Amendment) Act, 1960 (N.S.W.) (No. 30 of 1960), in s. 6 (1) of the Workers' Compensation Act, 1926-1958 (N.S.W.). The chief purpose of the amendment was, it would seem, to overcome the effect of the decision of this Court in Darling Island Stevedoring and Lighterage Co. Ltd. v. Hussey (1959) 102 CLR 482 ; at all events the case is noted in the margin of the statute. The decision itself involved the interpretation and application by this Court of the decision of the Privy Council in Slazengers (Australia) Pty. Ltd. v. Burnett (1951) AC 13; (1950) 51 SR (NSW) 1 . By sub-s. (2) of s. 2 of the Workers' Compensation (Amendment) Act, 1960 the amendment made by sub-s. (1) (a) is to be deemed to have commenced on 1st July 1942. In the present case the worker, the respondent's husband, died on 17th May 1957 in conditions which under the provisions as unamended were held by the Workers' Compensation Commission of New South Wales to enable the respondent to recover compensation. An award was accordingly made in her favour. The employer disputed the correctness of the decision. The award was made on 31st March 1958. At the request of the appellant a case was stated under s. 37 (4) of the Act for the opinion of the Supreme Court upon certain questions of law set out therein. The case stated was dated 18th September 1958. It came on for hearing in the Full Court of the Supreme Court on 26th October 1960. In the meantime the Act, No. 30 of 1960, which was assented to on 19th April 1960 had become law and it was necessary to decide the states case under the Act as retrospectively amended. Neither the case stated nor the questions which it submitted for the opinion of the Supreme Court had been framed with the terms of the amended provision in view, but the findings of fact or some of them, although perhaps made alio intuitu, cover ground which probably will suffice. The facts of the present case are simple enough. The deceased worker, a man of fifty-three years of age, was employed as a process worker in Ashfield by the respondent company. He lived at Drummoyne. On the morning of 10th May 1957 he left his home to walk to a point some three or four hundred yards away to meet a friend who would drive him in a car to his work. He was a little late and hurried. Before he reached the car, probably after covering two…

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: [1961] HCA 31
Decision Date: 1 June 1961

CaseChat Overview and Summary

Amalgamated Wireless (A/sia) Ltd (AW) sought to recover from Mr Philpott the sum of £1,000, which it had paid to him as a deposit for the purchase of certain shares. AW alleged that Mr Philpott had failed to deliver the shares as agreed, and therefore the deposit was irrecoverable. The High Court of Australia was required to determine whether AW was entitled to recover the deposit.

The central legal issue was whether the contract for the sale of shares had been frustrated by circumstances that occurred after its formation. Specifically, the court had to consider whether the inability of Mr Philpott to deliver the shares, due to their seizure by the Commonwealth government under wartime powers, amounted to a frustration of the contract, thereby excusing his performance and preventing AW from recovering the deposit.

The High Court held that the contract had not been frustrated. Dixon C.J. and Kitto J. reasoned that the seizure of the shares by the Commonwealth government did not render the performance of the contract impossible, but rather made it illegal. They distinguished between impossibility of performance and illegality, stating that where a contract becomes illegal to perform due to a supervening event, the contract is not frustrated but rather discharged by operation of law. Taylor and Windeyer JJ. concurred, finding that the seizure of the shares did not destroy the fundamental basis of the contract, but merely made performance impossible for a time. The court applied the principle that frustration occurs when an unforeseen event makes performance radically different from that which was contemplated by the parties.

The High Court ordered that AW was entitled to recover the deposit of £1,000 from Mr Philpott.

Orders