Australian Frontier Holidays Ltd v Williams

[2000] HCATrans 374

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D19 of 1999

B e t w e e n -

AUSTRALIAN FRONTIER HOLIDAYS LIMITED

Applicant

and

ALAN RAYMOND WILLIAMS

Respondent

Application to extend time to institute special leave application

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM DARWIN BY VIDEO LINK TO CANBERRA

ON THURSDAY, 31 AUGUST 2000, AT 4.32 PM

Copyright in the High Court of Australia

MR T.R. BRYANT:   May it please the Court, I appear for the applicant, Australian Frontier Holidays Ltd.  (instructed by Cridlands)

MR P.M. BARR:   May it please the Court, I appear for the respondent.  (instructed by Povey Stirk)

HIS HONOUR:   Yes.

MR BRYANT:   The application before your Honour is an interlocutory application dated 23 August 2000 seeking that the application for special leave dated 10 December 1999 shall not be deemed to have been abandoned and seeks directions in respect of the further ‑ ‑ ‑

HIS HONOUR:   Mr Bryant, your case, essentially, is that the failure to take the appropriate steps was occasioned through oversight and perhaps illness or inadvertence by the applicant’s legal advisers and that only two weeks are, in effect, unaccounted for.  Is that so?

MR BRYANT:   Two weeks – it is fair to say that the period involved is a little longer than that but the resulting period is probably about five weeks so whether it is two weeks or whether it is ‑ ‑ ‑

HIS HONOUR:   I think I might hear from Mr Barr.  I might be assisted if I heard from him.  You can sit down for the time being, Mr Bryant.  Mr Barr.

MR BRYANT:   Thank you, your Honour.

MR BARR:   May it please, your Honour.

HIS HONOUR:   Mr Barr, apart from any prejudice arising from delay on the assumption that all delay causes some prejudice, is there any other prejudice?

MR BARR:   Yes, your Honour.  There is the prejudice that not only has there been the usual delay but because of the spectre of the appeals process, which includes the appeal to the Court of Appeal as well as to this Court, because of the spectre of this appeal process that has been hanging over the worker for some years now, he has not really been able to, with positive confidence, advance his case in the court at first instance to the conclusion that the worker was denied when the court at first instance dismissed his claim on the basis of liability.

So there has been a substantial prejudice now for some years and that prejudice has continued from the time the application for special leave was made and it will continue, if your Honour were minded to accede to the application today, until such time as the application for special leave can be heard and disposed of.  So yes, there is prejudice, both in the past and continuing, your Honour.

HIS HONOUR:   What order was made by the intermediate court?

MR BARR:   I take it that your Honour is referring to the decision of Justice Riley who was the first intermediate Court of Appeal, if I could put it that way.  His decision was to set aside the learned magistrate’s finding that the worker was not injured arising out of or in the course of his employment and to then remit the matter to the court for further hearing.  But I am not sure that he actually made an order remitting it so far as that I believe that all he did was simply set the order aside and find that, for the worker, on that first basis.  I am sorry, I meant to refer to Justice Mildren, your Honour.  Justice Mildren was the first appeal judge in this matter.  Of course, notwithstanding - perhaps if I could indicate, your Honour, the sequence of events relevant to the appeals.

HIS HONOUR:   Yes, just wait a moment while I get some papers, thank you, Mr Barr.  Let me be clear about this.  What do you say the prejudice is to the respondent?

MR BARR:   Your Honour, as to the past that he has been unable to conclude his case, but as to the future that he is still delayed in being able to conclude his case.

HIS HONOUR:   Now, I am not familiar with the legislative framework in the Northern Territory but he can recover damages at common law or is this workers’ compensation?

MR BARR:   No.  If he is a worker within the meaning of the Act ‑ ‑ ‑

HIS HONOUR:   And this occurred at the workplace, that was the issue, was it not, whether this occurred at the work ‑ ‑ ‑

MR BARR:    Yes.

HIS HONOUR:   Assuming that it occurred at the workplace, did he then become entitled to common law damages if he could establish negligence or breach of statutory duty or the like?

MR BARR:    No, your Honour, there is a statutory exclusion against a worker claiming damages at common law.

HIS HONOUR:   So it is a form of statutory compensation, is it, that he would become entitled to?

MR BARR:    It is like workers’ compensation but there are no common law rights allowed if the person is a worker.

HIS HONOUR:   All right.  Now, is it a lump sum or is it a periodic payment, or what is the position?

MR BARR:    No.  If he were to succeed finally, he would be entitled to weekly compensation.  He would also be entitled to compensation for lump sum impairment.  He would also be entitled to all rehabilitation, medical, hospital, and so on, expenses.

HIS HONOUR:   He has, therefore, been shut out of the receipt of that money, or the possibility of the receipt of that money, for as long as the delay has occurred and will continue to occur, is that right?

MR BARR:    That is correct with one exception, your Honour.  He has, in the last couple of days, applied for and been granted interim benefits which will enable him to recover some compensation, not what I would argue is his full entitlement, but some compensation week by week until trial.

HIS HONOUR:   Why could he not have his periodic compensation immediately after the first decision in his favour?

MR BARR:    Your Honour, he could have applied for it at that stage but whether it would be sensible for him – there is an obligation to repay interim benefits if the worker is not ultimately successful.

HIS HONOUR:   What are the issues that have to be decided now, assuming that the judgment in favour of him remains, or in his favour that this was the workplace – what further issues have to be decided to give him an entitlement to his full compensation?

MR BARR:   Your Honour, a decision has to be made as to the nature of the injury he received, as to the extent and duration of the incapacity arising from that injury, and they are matters that were – evidence was adduced before the Work Health Court, at first instance, but those issues were never finally adjudicated because the Work Health Court dismissed the matter on the threshold issue, if you like, as to whether this was an injury in the workplace.

HIS HONOUR:   Yes.

MR BARR:   So, unfortunately, it is one of those situations where the Court at first instance has not fully adjudicated on all the matters that were argued before it.  So the worker now finds himself in this difficult situation:  does he continue - it has applied in the past quite strongly, does he continue or try to resuscitate his case, have it re-heard and completed at the risk of ultimately failing if the employer’s appeals are successful, or does he wait and see what happens ultimately with the employer’s appeals before then taking steps to conclude his claim?

HIS HONOUR:   What precisely is the duration of the period of non‑compliance with the rules?

MR BARR:   Well, your Honour, I have some difficulty here because I am not certain.  But let me put it to you this way:  the first rule that has not been complied with in this case is that requiring that the summary of argument be filed within 28 days of taking out the application for special leave.  In this case, rather than filing that argument within 28 days, it has been filed, on my rough calculation, on the 167th day.  So rather than say one month, it has been filed five and a half month, or five months after the institution of proceedings.  As I understand it, your Honour, it is because of the lateness for the filing of that argument that, if you like, the other matters required to be complied with, and in respect of which the deemed abandonment subsequently arose, could not be completed within the six months provided for by Order 69A.

HIS HONOUR:   All right.  I understand what your prejudice is.  I understand that.  I might hear from Mr Bryant now, thank you.  If you just wait a moment please.  Mr Bryant, that seems to be an extremely long delay.  If your client were really serious about this matter, and having regard to the uncertainty in which Mr Williams was placed, why should I give you leave?

MR BRYANT:   Well, just in respect of that, your Honour, first of all, the point is that the delay is the delay of the legal representatives and it is an unfortunate matter.  It is one of those things where there is just clearly fault.  It is the initial stage that has created the problem.  Thereafter, the solicitors and the legal representatives involved have taken a number of steps to hurry up the process in order to minimise the delay.  One can see from the correspondence annexed to the affidavit of Mr Sweet, which is filed in these proceedings, that the process is speeded up in order to endeavour to assist and, ultimately, with the intention that a timetable was suggested which would have meant that the hearing of the application for special leave would have occurred in the August sessions in Adelaide.

It is a lengthy delay, your Honour, but in respect of the question of prejudice, there is, in my submission, no direct prejudice.  There is no evidence that the delay in rehearing the proceedings has been stopped in any way by these proceedings.  What has happened in this case is that the injury occurred I think in 1996, January 1996.  The matter was litigated in 1998 in the Work Health Court.  It resulted in a finding in favour of the employer.  It is a workers compensation matter.  That matter was appealed before Justice Mildren.  He made the relevant order that the appeal be upheld and the matter be sent back for trial with the direction that on the issue of whether or not the worker was injured in the course of his employment be determined in favour of the worker.

HIS HONOUR:   Yes, and then you appealed to the Full Court, did you not?

MR BRYANT:   Yes, and the Full Court upheld the decision of Justice Mildren.

HIS HONOUR:   Was any attempt made by the respondent to get the outstanding matters decided by the magistrate?

MR BRYANT:   There is no evidence of that, your Honour, and I understand not.  There is some reference in the affidavit of David Langdon Sweet sworn 11 July 2000.  To that there is annexure DLS7, the submissions made by the respondent to the Registrar in respect of whether or not the Registrar should issue a certificate of deemed abandonment.  Paragraph 21 in particular of the submissions, which is the annexure DLS7, makes reference to what the respondent is doing.  That is in response to the suggestion that the respondent was delaying in taking steps in the Work Health Court, but specifically it seems to indicate that whatever else is the problem in having those matters listed before the Work Health Court, it has got nothing to do with the delays caused in this Court.

There is no evidence of which I am aware to suggest that any delay - and I do not know any reason for the delay in re-listing - has been caused by the fault of the applicant’s solicitors in failing to prosecute this application for special leave before the High Court as promptly as they should have done.  We do not know why the application has not been re-listed.  It was an option open to the respondent to do so.  We know that in February of this year the respondent made an application for interim benefits, which has eventually been listed before the Work Health Court and an order has been made several days ago. 

It was open to the respondent worker at any time from the occurrence of the injury to make an application for work health benefits on an interim basis.  It was only in February 2000 that such an application was made.  Now, I cannot tell your Honour why the matter has not been sought to be re-listed.  There is no affidavit evidence brought before you as to what steps have been taken.  In the absence of such affidavit evidence one can only assume that the failure to re-list has nothing to do with the delay in the steps before this Court.

HIS HONOUR:   Why should not I impose, if I were minded to grant your application, a condition that in view of the delay and uncertainty, your client should pay the costs of the application for special leave in any event, pay the respondent’s costs of the application for special leave in any event?  Uncertainty can be something very corrosive to operate upon a person’s mind and intentions and future and life generally.  To have something hanging over one’s head and not to know whether it is going to be prosecuted or finalised, can be very worrying.

MR BRYANT:   Yes.  I can say in respect of that, your Honour - I have no instructions, of course, on the point, but it is fair to say that in respect of the application for special leave, that my client, although nominally an employer, nevertheless has an insurer standing behind it, and has an interest in the overall resolution of what we contend is an important question of law.  So we have, obviously, a wider interest, as it were, and are better able to bear the costs.  So, in respect of that, I have some difficulty, although I am mindful it was not done in Jackamarra’s Case but that is, perhaps, a slightly different situation.  I am mindful that I am in some difficulty in respect of your Honour’s suggestion.  I do have a ‑ ‑ ‑

HIS HONOUR:   The fact that you want to test the point anyway, and you say that it is of much wider interest that this case, really suggests to me that, perhaps, the condition should be that your client pay the costs of the application, and in any appeal - pay the applicant’s costs, not only of the application, but also of the appeal, if any, in any event, as a condition to allowing your application to proceed.

MR BRYANT:   The only point I would make about that, your Honour, is that that, in any event, might be an order made by a court hearing the application for special leave a fortiori if there is already an order in respect of the present application for special leave.

HIS HONOUR:   Yes.  All right, I think I understand your points, Mr Bryant.  Is there anything further?

MR BRYANT:   What I am saying, your Honour - only this.  First of all, I stand firmly against the suggestion that there is any direct prejudice.  I suggest that if your Honour is minded to make a condition of the order that the applicant pay the respondent’s costs, in any event, that that should be limited to the hearing of the application for special leave; and that the other question as to whether any appeal, the employer should carry the costs of

the respondent, in any event, should be left to the Court hearing the application for special leave.

HIS HONOUR:   All right, thank you, Mr Bryant.

MR BRYANT:   Thank you, sir.

HIS HONOUR:   Mr Barr, what I have in mind to do – and I am only putting this to you provisionally because I cut you off before – what I have in mind to do is to extend time to allow the application to proceed, but upon condition that the applicant pay your client’s costs of the application and the appeal, if any, in any event.  Now, that is what I am minded to do, but I have not heard you fully, I do not think.  If there is anything further you would like to say, please go ahead and say it.

MR BARR:   Thank you, your Honour.  There are a few points that I would seek to raise with you.  The first relates to the problems of the failure to re‑list, a problem identified as to the respondent worker’s failure to re-list this matter.  With respect, your Honour, in my list of authorities was the decision of Justice Mildren, that is the single judge of the Supreme Court at first intermediate appeal stage, that is the decision of Williams v Australian Frontier Holidays Ltd (1998) 147 FLR 157 at page 163. In the conclusion part at page 163, your Honour Justice Mildren indicated that he was not in a position to himself dispose of the matter finally for the reason that the magistrate had not heard the case fully. Justice Mildren then said, and this is at page 163, about point 7 under the heading “Conclusions”:

The appellant’s notice of appeal suggests that the matters should be remitted to the Work Health Court for determination of those issues.  Whether or not I can remit the matter to the learned magistrate is a matter about which I still entertain some doubts.  In Wormald International (Australia) Pty Ltd v Aherne (195) JSCNT 818 at 820‑821 I decided that there is no power to remit and that this Court must, in a proper case, make such findings, based on the transcript, which ought properly have been made.  Since then, the Court of Appeal has on numerous occasions ordered a new trial…..but I am unaware of any occasion when the Court of Appeal has remitted a matter in the sense of ordering a matter to be sent back to the magistrate appealed from to dispose of the matter.  This is obviously the preferable course and one I would readily adopt if I thought I had the power to order it.  Clearly –

says his Honour –

s 116 of the Act should be amended by the legislature to expressly confer a power to remit.

So, your Honour, the inference from what his Honour concluded at page 163, is that there was doubt as to whether the Supreme Court could order the matter to go back to the same magistrate for him to complete the hearing and, with respect, that is the answer to your Honour’s question.  That is the explanation as to why the worker did not immediately ask of the magistrate to do something which may have been beyond his power.  As well as that, of course, as your Honour points out earlier, there was an almost instantaneous appeal to the Court of Appeal creating the corrosive uncertainty to which your Honour referred to a short time ago.

So I submit that explains the apparent inactivity on the part of the respondent worker from taking the course that your Honour suggested and which, as his Honour Justice Mildren said, would clearly have been the appropriate course if the statute had allowed it.  Your Honour, the other issue I wish to raise with you, and I do not know if your Honour has a view on this, but it is my submission that in the circumstances of this case, notwithstanding your Honour’s indication as to the kind of comforting orders, if I could put it that way, that your Honour would propose to make, it is still an appropriate juncture in this application for leave process, through you, your Honour, to examine the material, including the arguments which are now filed in favour of special leave being granted, to see whether or not there is any arguable case, anything that should be permitted to go on from here.

I know that my learned friend is taking you to the cases of Lagarna and Jackamarra in his written submissions but, in my submissions, your Honour, those cases are clearly distinguishable from the present because, firstly, they relate to appeals where the right of appeal was as of right and it is to be clearly distinguished from the present situation where the applicant must be talking about something less than appeal rights, but rather the opportunity to be heard on the problematical issue as to whether special leave ought to be granted.  So that is the first basis on which I submit that the present situation is distinguishable from those authorities.

The second basis, your Honour, is that in those cases, that is both Lagarna and Jackamarra, the court was concerned with a different level of appellate court to that at which your Honour now sits.  The court was considering appeals from the first instance Supreme Court judge or Commissioner to the intermediate Court of Appeal.  The court was at pains to point out, in those cases, that issues of fact still remained to be ventilated on the hearing of the appeals.  In the present case, of course, your Honour, the facts are frozen from the decision of the magistrate at first instance.  The only issues to be dealt with, and which have been dealt with on the true appeal reviews to date, have been appeals on questions of law and that

arises under the Work Health Act, section 116, which limits appeals to questions of law.

So, your Honour, at no stage have the two appeal courts, which have decided in the respondent worker’s favour, been required to canvass at large the facts of the case because the facts, essentially, as found by the Work Health Court are now the facts in the case.  The only issues are issues of law.  So, your Honour, in my submission then, the facts, such as they are, and it is a very limited scope of facts, can be gleaned from a transparent reading of the decisions of Justice Mildren and from the decision of the Northern Territory Court of Appeal.

The decisions which suggest that it would be wrong to cursorily, or peremptorily, cast aside or deal with the merits of the appeal simply do not apply here because one does not have the problem that the High Court spoke of in Jackamarra of the need for the Court of Appeal to also analyse the findings of fact of the trial judge, the court at first instance.

So, your Honour, in my submission, this is an appropriate case to look cursorily at the decisions of the Supreme Court single judge and the Court of Appeal to carefully consider the submissions or argument as to grant of special leave to see on even a cursory reading of the argument for the proposed appellant that there is no error of law disclosed in the two appeal judgments written to date and, moreover, and perhaps more importantly from your Honour’s perspective, that there are no special leave issues raised on the facts of this case.  This is not the vehicle that my learned friend would have you accept for running major issues before the High Court on a special leave application or, ultimately, on an appeal.  May it please your Honour.

HIS HONOUR:   Yes.  Do you want to say anything more, Mr Bryant?

MR BRYANT:   Only in respect of section 116 of the Work Health Act, your Honour, which your Honour cannot be expected to know about because it is a local provision and can I suggest to you that it is an irrelevancy for this reason.  It is an unusual provision.  It does need amending, but the effective situation where a Court of Appeal or any Court of Appeal in the Northern Territory considers an appeal from the Work Health Court is it either ascertains that there is an error of law and then goes on to correct that error of law, if necessary by making findings of fact or, if it finds there is no error of law, in which case the appeal is dismissed, or, if there is an error of law and it is inappropriate to make findings of fact, it then sends the matter back to the Work Health Court for a retrial.

It cannot, as it were, formally remit, that is, to send it back to the same magistrate.  In this case that is quite academic in any event because

the magistrate in question has ceased to sit on the Work Health Court and, in fact, has been appointed to the federal magistracy.  So the application as to whether or not the matter could be remitted is of no relevance.  The appropriate step is for this matter to be relisted for trial and, in my submission, that should have happened as soon as – I will put it this way:  I cannot offer any explanation, your Honour, as to why it has not happened to this stage or any steps have been taken in regard to that.

Perhaps the only other thing I should say is I for one do not invite your Honour to sit down and consider the summary of argument in this matter as though we were arguing the application for special leave.  All I say is it may well be that at the end of the day the application for special leave is refused.  So be it.  But it cannot be said in respect of this application that it is one doomed to failure, as was said, I think, in respect of the judgment in – certainly in respect of the case of Gallo v Dawson, which, of course, is on my list of authorities.  They are all my submissions, your Honour, thank you.

HIS HONOUR:   This is an application for an order that an application for special leave to appeal not be deemed to be abandoned by reason of non‑compliance with the Rules relating to an application for special leave. 

The applicant argued that there is no prejudice to the respondent other than the prejudice that will always attach to delay, of worry and uncertainty as to a claimant’s possible obligations to repay interim compensation and uncertainty as to such an applicant’s ultimate financial position. 

The applicant also contends that the delay was in large part delay by the legal advisers, one of whom fell ill, and that the applicant should not be answerable for that.  The respondent to this application urged me to form a view of the applicant’s prospects of success.  It is submitted that I would conclude that the application for special leave would not, in any event, succeed.

I am unwilling to do that.  Applications for special leave are customarily dealt with by more than one Justice of this Court and only much more exceptional circumstances than those that exist here would induce me to examine an application for special leave and to hold that it was so hopeless than no Justices of this Court would be prepared to entertain it as a serious application.  However, the delay in this case has certainly been a very long delay.  I was told that a step that should have been taken within 28 days was not taken for some 167 days. 

In all of the circumstances, I am however prepared to allow the application and to order that the application for special leave not be deemed to be abandoned, but upon conditions.  Those conditions are that the applicant provide an undertaking within seven days from today to pay the respondent’s costs of the application for special leave and the appeal, if any, regardless of the outcome of the application for special leave and any appeal, and, further, that the applicant pay the respondent’s costs of this application on an indemnity basis within 14 days of the submission by the respondent’s solicitors of an account to the applicant’s solicitors. 

I would also certify for counsel on this application.

Now, is there anything further that I need deal with?

MR BRYANT:   The only matter that concerned me was the further progress of the appeal and whether it is appropriate to make directions in respect to it.  My client is, of course, anxious that the matter proceed now with all due haste and wanted to avoid any uncertainty as to what the steps are - - -

HIS HONOUR:   Well, you tell me, Mr Bryant, is there anything further that you have to do?  I think you have filed your submissions, is that right?

MR BRYANT:   Yes.  The next step in the proceedings, your Honour, is for the respondent to file its outline of argument – summary of argument.  Normally that would occur within 21 days of receiving the applicant’s summary of argument.  I am obviously minded to suggest that the respondent file that summary of argument within 21 days of today’s date but obviously my learned friend may have something to say about that, and then to follow through the Rules as they provide.

HIS HONOUR:   I do not know whether it is necessary to make an order.  If Mr Williams’ legal advisers do not act promptly, they can hardly be heard to complain if the matter does not come on.  It is really in their hands, I think, Mr Bryant.  I am not inclined to make that order, really.  Is there anything else?

MR BRYANT:   No, thank you.

HIS HONOUR:   Mr Barr, is there any other order that I should make or anything further that you want to say?

MR BARR:   No, thank you, your Honour, and we certainly propose to have the summary of argument filed very promptly.  So, if the Rules provide for 21 days, I think my learned friend can assume that that would be what we are trying to achieve. 

HIS HONOUR:   You understand the intent of my order, Mr Bryant, that you should provide an undertaking in writing ‑ or your client should provide an undertaking in writing in the terms that I mentioned and your client will be obliged to pay those other costs on an indemnity basis.

MR BRYANT:    Yes, I understand - - -

HIS HONOUR:   There is nothing you can really say about that last order, is there, that you brought Mr Barr here on what would otherwise be a totally unnecessary application.  You have to get the indulgence of the Court.  There is nothing you could say about that, is there?

MR BRYANT:   Particularly in light of your Honour’s view that the applicant should pay the costs of the application – basically all of the costs all of the way through.  There is nothing I could say, your Honour.

HIS HONOUR:   Yes, but it is only in respect of this application that I have made the order for indemnity costs.  You understand that?

MR BRYANT:   Yes, I understand that, your Honour, thank you.

HIS HONOUR:   All right.  Nothing further, Mr Barr?

MR BARR:   No, thank you, your Honour.

HIS HONOUR:   Thank you, gentlemen.  We will adjourn the Court.

AT 5.14 PM THE MATTER WAS CONCLUDED