Attileh v State Rail Authority of NSW

[2005] HCATrans 664

[2005] HCATrans 664

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S148 of 2005

B e t w e e n -

NASSIM ATTILEH

Applicant

and

STATE RAIL AUTHORITY OF NEW SOUTH WALES

Respondent

Application for special leave to appeal

KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 SEPTEMBER 2005, AT 12.27 PM

Copyright in the High Court of Australia

MR M.J. NEIL, QC:   May it please the Court, I appear with my learned friend, MR F.L. AUSTIN, for the applicant.  (instructed by Buttar, Caldwell & Company)

MR P.R. GARLING, SC:   May it please the Court, I appear with my learned friend, MS K.C. MORGAN, for the respondent.  (instructed by Astridge & Murray)

KIRBY J:   Yes, Mr Neil.

MR NEIL:   Your Honours, this involves a problem of two schemes for dealing with claims for injuries at work.  Before 1987 and, we would submit, for a long time thereafter, a person injured before June 1987 could bring, if he wished, a common law claim and if he brought it beyond the limitation period he would have to go to the court and fulfil a test under the Limitation Acts.  If he satisfied that, as was done in this case, he may then proceed with his court case.

But the new regime, which has progressively come in starting in June 1987 with restoration of limited common law rights and leading to these amendments in 2002, now would provide for a case that fully came within the new scheme, a whole new regime in which notice has to be given of the claim to the employer, then a claim has to be made and, according to the guidelines that are laid down, the claim cannot be made until notice is given and then compensation cannot be recovered unless the claim was made within six months after the injury, but if you are outside a lengthy period, or more than three years, the insurer may in their discretion accept it but after three years only with the consent of the WorkCover.  In addition, there are requirements for 15 per cent whole body or, in the case of hearing, 6 per cent, and you can only recover economic loss even if you get over those thresholds and there is no Griffiths v Kerkemeyer.

In this case, the Court of Appeal held that the new claims procedures, Chapter 7, Division 1, did not apply to this case so we were not bound by the notice provisions.  Therefore, we would submit, it would follow we were not bound by the provisions relating to six months later and we could hardly, we would submit, be bound therefore by the claim provisions because, according to the guidelines they are predicated upon giving notice.

What the Court of Appeal held was a combination of a clause in the schedule, 6, of the transition provisions, and section 262 came into play and we could not bring court proceedings for what was said to be work injury damages – and we say we do not come within that definition, that is the matter involved – until a claim had been made.  We submit the error is to even think of in terms of claims for cases before 1987.  The rest of these provisions, as I have said to your Honours, do not apply to it, therefore, on what basis does section 262 and the subsection, the transitional provision, apply.  It is said to apply because the literal word compels it.  It is said that the words are so stark that we must be bound by it.

KIRBY J:   Not only that but the policy of the statute, as Parliament’s policy speaking from a certain point of time, is in the strict language of the new law.

MR NEIL:   Yes, I would submit it is much the same point, your Honour, because a very important issue here is really whether or not what the statute is now doing is applying the policy from 1987 such that when it talks about claims for matters before this section applies, does it go back to way before 1987 or does it, in real proper intention, go back only to 1987.  Thus, the problem is resolved if it does not go back before 1987, you do not ‑ ‑ ‑

KIRBY J:   Justice Tobias, in the Court of Appeal, indicated his anxiety about some aspects of the respondent’s arguments but he came down on the other side.  I do not know whether you were sitting here earlier in the day when Justice McHugh made the point, on behalf of the Court once again, that in matters of statutory construction of this kind, there are always arguments both ways.

MR NEIL:   Certainly, your Honour, but the difficulty in this case is this, that it is a matter of considerable public importance.  We do not know and we have not been able to put on evidence about how many cases there are before 1987, but there may well be many that might yet emerge, hearing, or other cases.

KIRBY J:   That is speculation, Mr Neil.  I would not have thought there would be all that many, 1987 is ancient times.  I was in the Court of Appeal, life was easier.

MR NEIL:   True, your Honour.  But, this case came up, there were two others heard at the same time, the other persons did not pursue their appeals.  It cannot be said there are not, what might be, a reasonable number around and injuries come out later, hearing, psychological, those that are not to the Dust Diseases Tribunal but involve respiratory matters.  In those circumstances ‑ ‑ ‑

KIRBY J:   I suppose you can appeal to the general principle that if Parliament is to take away people’s civic rights it has to do it clearly.

MR NEIL:   Exactly, your Honour, we do make that point in our written submissions, otherwise ‑ ‑ ‑

KIRBY J:   It is not a very thrilling prospect to get into the transitional provisions of this legislation of New South Wales.  It is not a matter of high legal principle for the whole of the country.  I know it is important to your client and that is a fact that has to be considered.

MR NEIL:   And throughout the States, your Honour, because this is a major problem in this sense:  I cannot say what the comparable arrangements are in other States but I think it would be reasonable to say that the new system is a sea change and it may not be the company in other States but the big problem in this State with so many workmen’s cases is where you have this change to the system and where we would not, we would say, if we had have made the claim – and we say we do not have to, should not talk about claims – we would not be bound, we would say, by the various provisions in the schedules but a real interpretation could be then raised later against us, or people who make a claim, for a pre-1987 one, that they have bound themselves to the thresholds and all the substantive provisions under the new scheme.

Our submission is the real intention being that this new scheme only applies to the different sets of cases that have come under the different sets of amendments since 1987 and not to pure common law.  Now, why should a pure common law case be dependent upon the WorkCover authority deciding whether or not it is fair that you bring the case after the limitation period as against a judge deciding?

There are very substantial implications, we would submit, for the dealing with the cases and the justice of a number of cases, your Honour, and I accept it is not perhaps all that thrilling, these transition provisions, but it is important and there is a substantial resonance in there of public interest, we would submit, that warrants the matter being attended to and it must be a good view – it raises the position so starkly because we are either in or out.

KIRBY J:   It presents the problem.

MR NEIL:   Yes, your Honour.

KIRBY J:   There is no question about that.  It is just a question of whether you can show error on the part of the Court of Appeal which is the gateway to this Court.

MR NEIL:   Your Honour, we would submit the court was troubled, the court called the parties back having found itself the transition provision.  There was further argument – there had been a great deal of argument in the matter – and the court eventually, perhaps with some reluctance, having said, “We’re not bound by this, or this, or this provision”, said, “We’re only bound by the schedule 6 and the 262”, but, we would submit, they overlooked, and it was not fully considered, the real point.  There seems to be an assumption, you cannot bring your court proceedings until a claim is made but, on our submission ‑ ‑ ‑

KIRBY J:   I understand your point.

MR NEIL:    ‑ ‑ ‑ you do not have to have a claim, therefore, the court has missed the point and their arguments that say, “We’re not bound by 254”, should have flowed on to say, “We’re not bound by 262”.  There is no consistency there if the court says:

254 - Notice of injury must be given to employer

(1)      Neither compensation nor work injury damages are recoverable by an injured worker unless notice of the injury is given . . . 

(2)      The failure to give notice . . . is not a bar . . . is found that there are special circumstances –

but special circumstances have to be found and then you have to give a claim and you cannot make a claim until you have given notice.  If all that does not apply to this case, why does a claim provision simpliciter apply, we would submit.  The Court of Appeal should have gone further and consistently, with its reasoning that you do not take away rights unless specifically shown by the legislation, applied that reasoning to section 262, we would submit.  That is the importance of the case, your Honour.

I could take your Honours to all these sections but it is more than what one might call something that is a plausible argument on a construction point.

KIRBY J:   You need more than a plausible argument on a statutory provision and, in particular, transitional provisions to get into this Court.

MR NEIL:   That is what I am submitting, your Honour.  It is more than a plausible argument.  It is an argument that nearly succeeded and, in our submission, ought to have succeeded if the Court of Appeal’s first half of their judgment on Division 1 of Part 7 had simply been used in the same way in Division 2 of Part 7.

KIRBY J:   They felt that the language of the transitional provision was intractable.

MR NEIL:   And that throws up the issue, your Honour.  We would submit there is more than enough in their judgment to show that – Chapter 7, Part 1, of its words, it is tractable, you cannot do this without notice.  Where is the difference between that and a claim?  It was never explained in the Court of Appeal judgment other than “intractable” but they did not say why.  The other words did not apply even though they read intractably.  Thus, the misapprehension, with respect, is to fail to recognise that the whole statutory scheme, reading the two Acts together as they are written to be read together, only apply from 1987 and different periods that you go back, you go back.  As my learned friend shows me, page 21, paragraph 23, the Court of Appeal says, plainly:

Chapter 7, Part 2, Division 1 (Notice of Injury) ‑ ‑ ‑

including sections 252 and 254 ‑ ‑ ‑

This Division has no application to the appellant.

Why then should Division 2 have application, we would submit?  Division 1 did not have application because of the principles of making sure the Parliament intended fully looking at the whole scheme.  In our submission, the court did not fully set out reasons to deal with 262 nor did it assign any reasons why the definition of work injury damages is to be applied in this section.  Thus, it is a matter, we would submit, important for special leave and an undoubted vehicle and the guidelines at page 44 of the application book, paragraph 29 repeated:

Before a worker can make a claim, the worker must serve a notice of injury -

If we do not have to serve notice, why do we have to make a claim?  If it please, your Honour.

KIRBY J:   All right, I think we have your points.  We are going to adjourn now and we will consider over lunchtime whether we call on you so we hope you have a pleasant luncheon, Mr Garling.  The Court will adjourn until 2.20 pm.

AT 12.39 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.21 PM:

KIRBY J:   Well, Mr Garling, what do you say about the suggested inconsistency that demonstrates error?

MR GARLING:   Your Honour, there is no inconsistency.  My learned friend starts from the proposition that the consequence of the judgment of the Court of Appeal that his common law rights have been removed.  That is just not so, your Honours.  All that has happened is that there is a set of precedent requirements of a procedural kind before a court case can be commenced.  So his rights continue.  He can make a claim tomorrow if this Court dismisses his application today.  All that the law requires is he goes through some steps of providing a claim to the relevant authorities and having it assessed for the purpose of seeing, as the Minister said, that disputes can have some early resolution.  So that is the first point.  Because that underlies his proposition ‑ ‑ ‑

KIRBY J:   Early resolution seems to be a bit of an inconsistent thought in this case. 

MR GARLING:   He has never entered the system for early resolution.  That is the problem.  He conceded below, and this case has always been fought on the fundamental proposition that the mandatory requirements have never been complied with.  So he has never chosen to enter that system.  Now, the second point – so that when my learned friend says the reason there is an inconsistency is because my common law rights have been abolished and statutes ought not be presumed to do so without express words, he is wrong and the Court was therefore correct in not applying that principle.

The second and important proposition, your Honour, is that my learned friend called in aid two matters to say that there was inconsistency.  The first is, he said, that upon the interpretation, Division 1 of Chapter 7 was not made applicable, but Division 2 was, and that was, in effect, he said, a rather bizarre interpretation because it meant he did not have to make a claim within six months.  The thing that is important is that that argument was succinctly identified in the court below.  Can I take your Honours to paragraph 23, page 21:

Chapter 7, Part 2, Division 1 (Notice of injury) applies only in respect of injuries received on or after 1 January 2002.  This Division requires an injured worker to give prompt notice of injury to the employer –

Stopping there, your Honours, of course it could only apply to injuries after 1 January 2002 because otherwise the injuries are passed and one cannot give notification within X months of them happening:

This division –

the Court correctly says –

has no application to the appellant.

So far common ground, your Honours.  If your Honours then go to the next page, paragraph 32, page 23, Justice Mason, the President, there says:

There is nothing in these provisions in Division 2 that make them incapable of being complied with by a claimant for work injury damages who, like the appellant, seeks only “common law damages” because his or her claim is confined to injury prior to 30 June 1987.

In other words, one can comply with Division 2 without regard to Division 1.  There is no inconsistency.

KIRBY J:   You say the lack of inconsistency is because of the specific reference in Division 1 to injury on or after 1 January 2002 and the nature of injuries?

MR GARLING:   Yes, and secondly, your Honour, that the requirements in Division 2, namely, to lodge claims and be processed through what I might call the early dispute resolution process, do not depend upon Division 1.  One can comply with either or both so that there is no fundamental inconsistency.  This claim can be processed through the procedure in Division 2.

The third proposition, your Honours, is, with respect, there is just no ambiguity in this legislation of a kind that calls up the cri de coeur of my learned friend.  May I take your Honours to page 21 for a moment to demonstrate this point.  At about line 15 on page 21 your Honours see the definition of “work injury damages”:

work injury damages means damages recoverable from a worker’s employer in respect of:

(a)      an injury to the worker caused by the negligence or other tort of the employer –

classic definition, your Honours, with respect, of a common law claim for negligence –

(b)      the death of the worker . . . 

whether the damages are recoverable in an action for tort or breach of contract or any other action –

There is no difficulty there in seeing that those words are a statutory encapsulation of the notion of a common law claim.  Your Honours, at page 22 may I draw the Court’s attention in paragraph 27 to section 262, that is in Division 2 of Chapter 7.  Section 262 says:

Court proceedings for the recovery of work injury damages cannot be commenced until a claim for the damages has been made.

Now, your Honours, just pausing there for a moment, “work injury damages” is a clear definition.  For my learned friend to succeed he would have to say “work injury damages” means damages recoverable in respect of an injury which occurred after 30 June 1987, his so‑called dividing date for the old common law scheme.  It does not say that.  Section 262 is not in any way ambiguous.  Then at page 27 the relevant transitional provision appears.  Your Honours will see it there between lines 10 and 20:

Division 2 –

and your Honours note sections 259 to 264 include the one I just took the Court to –

extend . . . to the making of a claim after the commencement of those sections even if the claim is an existing claim.

Now, what the court below said was, if all this intended to apply to was an existing claim, that is to say a 2002 and forward claim, it would have said so.  All the transitional provision would have done was to say the making of a claim after – to the making of an existing claim after the commencement of those sections.  But it did not and that is the point that Justice Tobias fastens on when he says, in analysing the plain words, “claim” must mean something more than an existing claim.

So, your Honours, there is just in those provisions no ambiguity and we submit that the decision of the court below is undoubtedly correct.  Your Honours, even if there was ambiguity, contrary to our submission, my learned friend does not identify the correct or adequate purpose of the legislation.  That was identified by the Court at pages 23 to 24.  I think your Honour the presiding judge drew my learned friend’s attention to it at an early point of the submissions.  At the bottom of page 23 in paragraph 35 the President says:

The Minister’s second reading speech relating to the Bill that introduced Chapter 7 . . . emphasised its procedural intent.  It was described as containing “substantial measures to minimise disputes, as well as providing a fair system for resolving disputes should they arise”.  The Minister also described the Bill as “retrospective as to process but not in relation to benefit levels”.

Your Honours, there is the purpose of the legislation.

KIRBY J:   So is the legal answer to the complaint which the applicant makes about the impact of this legislation on old claims that if the decision of the Court of Appeal is confirmed then everyone knows that if you have an old claim you just have to bring it in accordance with the procedures laid down in this legislation?

MR GARLING:   Correct.  It is no different, your Honours, for example, to saying – as happened in New South Wales in relatively recent times – all motor car claims will be dealt with by the District Court and the District Court has its procedures for notification before filing or filing with expert reports or whatever it may be.  This is simply a procedural measure.  As I said in opening, your Honours, my learned friend’s client could bring a claim tomorrow if he went through the proper procedure.

KIRBY J:   Well, of course, he says he does not have to, but I understand the way you put it.

MR GARLING:   That is the way we put it, your Honours.

KIRBY J:   I think we are getting to the point that you are repeating yourself, which is very unlike you, Mr Garling.

MR GARLING:   I beg your Honour’s pardon.  I wanted to draw your Honour’s attention to one other potential ambiguity in the way my learned friend put it which was to say that the so‑called WorkCover guidelines made the notion of limitation and the like rather bizarre because you had an administrative process overlying the court process.  We would simply remind the Court respectfully that the guidelines are of course regulations and therefore subordinate to the legislation.  So any question of ambiguity is really dealt with in accordance with those ordinary principles.

Secondly, to the extent that they are made applicable by the Act, and my learned friend’s submissions suggest that they are made applicable, if I invite your Honour’s attention to page 44 of the application book, the section which makes them applicable says:

A claim must be made in accordance with the applicable requirements of the WorkCover Guidelines.

Your Honours, I emphasise the word “applicable”.

KIRBY J:   Yes.  I do not think we need further assistance.

MR GARLING:   I was only going to add that we were right before your Honour, it was right below.  If your Honours please.

MR NEIL:   Your Honours, I did not and do not submit that the common law rights were removed.  The problem is the common law rights remain, but one ‑ ‑ ‑

KIRBY J:   The point is understanding the purpose of this legislation.  It is a tricky business with legislation of this kind in transitional provisions to enter into its forest without really keeping your bearings, but that is why it is important to understand the purpose and the purpose is said to be to superimpose a form of procedure on new claims, but also on old claims.

MR NEIL:   Well, your Honour, if the question is, is an old claim, as we say, one that is pre-2001 but going back to 1987 or one including before 1987?  We submit the whole scheme is only from 1987 onwards and there is an ambiguity in context, because the common law claims rights remain.

KIRBY J:   But once you understand the purpose, then it is at least strongly arguable that the Parliament would intend that purpose to apply to claims in respect of injuries after a certain period, but also earlier claims because it is a procedural requirement that facilitates the efficient handling of claims, period.

MR NEIL:   That may be if it were the case that the Court of Appeal had said that all of the procedural provisions apply.  The notice provisions are said not to apply.  You see, your Honour, we cannot make a claim tomorrow because we have not complied with the notice provisions and the guidelines prevent us from making the claim and the subordinate legislation, and even if somehow we got through all that, section 261(5) provides that it is discretionary on the part of the insurer to accept a claim outside three years and they only accept it with the approval of the WorkCover.

KIRBY J:   Well, that is a complaint about the substance of the legislation.  I mean, I can understand that complaint.

MR NEIL:   But it is an argument raised by my friend against us on the interpretation, but we submit there is a clear ambiguity has arisen within the

various provisions such that only one provision that we say ought not to apply to us is said to apply.  Section 262, my friend refers to that.  That is our concern.  We say the problem is 262.  It should not apply, because claims should not be applying to us and the purpose of the legislation is, we would submit, in context properly read, that section 262, section 254 and the other provisions, 261 and the like, could only reasonably in conformity with the second reading speech provide a fair system if they either all applied to pre-1987 claims or they did not.

It is unfair and does not fill the purposes of the legislation to have one only of these provisions that applies and the remainder do not.  Rather, the legislative intention is to be shown by saying if the great majority do not apply, this one should not apply.  There is a real ambiguity and the only way to resolve it is to say that particular one does not apply.  If it please the Court.

KIRBY J:   This application concerns the meaning and effect of provisions of the Workplace Injury Management and Workers Compensation Act 1998 (NSW). The applicant lost in the District Court of New South Wales where Acting Judge Bowden dismissed his proceedings on the grounds of conceded non‑compliance with procedural provisions made mandatory by Chapter 7 of the Act.

The Court of Appeal unanimously upheld the judgment of the District Court (Justice Mason, President; Justice Santow and Justice Tobias).  Justice Tobias acknowledged that there were some arguments favouring the applicant’s construction of the Act.  However, he preferred the contrary interpretation.

As was said earlier today by Justice McHugh in another matter, and has often been said by this Court, such questions of statutory construction are inherently disputable.

We are not convinced that the Court of Appeal of New South Wales erred in the interpretation of the Act that it preferred.  We are not persuaded that there was a relevant inconsistency in the reasoning of the Court of Appeal, as submitted by the applicant.  Any appeal would not enjoy reasonable prospects of success.  Accordingly, special leave must be refused.  The applicant must pay the respondent’s costs.

AT 2.37 PM THE MATTER WAS CONCLUDED