Australian Frontier Holidays v Williams

[2001] HCATrans 321

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 LTD

Applicant

and

ALAN RAYMOND WILLIAMS

Respondent

Application for special leave to appeal

GAUDRON J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM DARWIN BY VIDEO LINK TO CANBERRA

ON FRIDAY, 14 SEPTEMBER 2001, AT 9.00 AM

Copyright in the High Court of Australia

MR W.J.N. WELLS, QC:   If the Court pleases, I appear with my learned friend, MR T.R. BRYANT, for the applicant.  (instructed by Cridlands)

MR P.M. BARR:  If the Court pleases, I appear for the respondent.  (instructed by Poveys Stirk)

GAUDRON J:   Yes, thank you.  Before you commence, Mr Wells, there is that costs order, is there not?

KIRBY J:   If you have not paid, why should we hear you?

MR WELLS:   I understand that the costs have been paid and there is, I think, only an issue arising out of the order as to the amount.  What has happened is that the full amount has been paid with a reservation of right as to the quantum.  So by letter of 11 September this year, from those instructing me to my learned friend’s instructing solicitors, a cheque in the full amount was forwarded and a reservation of right was included in the terms of the letter as to the quantum.

GAUDRON J:   Perhaps we might hear from Mr Barr.  He seems to be anxious to say something on that subject.

MR WELLS:   If the Court pleases.

GAUDRON J:   Yes, Mr Barr.

MR BARR:   May it please your Honours, yes, I understand that the costs previously ordered by Justice Callinan have now been paid.  The only possible remaining issue as to costs is as to the nature of the undertaking in the event that this Court does grant special leave.  But that is really a matter for me to address at a later time.  If the Court pleases.

GAUDRON J:   Yes, thank you, Mr Barr.  Yes, Mr Wells.

MR WELLS:   If the Court pleases.  This case constitutes, in our submission, a wrong turning in the application of a deeming provision for work injury.  The deeming provision being, first, namely, presence in the workplace when injured.  The wrong turning arises from two features of the case.  The first is the employer‑owned worker accommodation on the same land as the business at which the worker works.  The second feature is the dual function of the worker’s accommodation as his place of residence and also a place where he takes his work from time to time.

KIRBY J:   And had a computer on which he did some of the employer’s business, apparently.

MR WELLS:   At his choice, yes, your Honour.  The critical feature of this being that on the day of the injury he carried out no work in the lounge room of his unit or, indeed, in his unit at all.  But your Honour notes the existence of the computer.  It was, and a clear finding made by the Work Health Court Magistrate, that this was a matter of the worker’s choice, that the facilities ‑ ‑ ‑

GAUDRON J:   It was not simply a matter of choice though.  It was done with the at least tacit approval of the employer.

MR WELLS:   With the knowledge of the employer and without the employer’s objection.

GAUDRON J:   Yes.

MR WELLS:   That is true, but it was for the convenience of the worker that he chose to do his paperwork in that way, rather than to make use of the facilities for that purpose provided by the employer in the surrounds of the kitchen.

KIRBY J:   Does not that demonstrate the rather peculiar and special features of the facts of the case?  It is just a little artificial to talk of the work environment as ceasing somewhere halfway between the puddles on the way from the kitchen to the actual bedroom.

MR WELLS:   Your Honour, if we may so, with respect, artificiality in a sense of bounds in this legislation and oft times the judges have said that the line has to be drawn somewhere.  The question is, where is the line to be drawn?  My concern is that there has been, in this case, a wrong turning, notwithstanding the inevitable artificialities resulting from having to match up a piece of social legislation of this kind with the realities of life ‑ ‑ ‑

KIRBY J:   Does not the point about the line having to be drawn indicate that really it depends very much on its own facts, that the principles are available.  I appreciate that there were differences in view as to what the principles were, but ultimately somebody has to draw a line in a case like this.  You have it as he just starts to get up those stairs on the way, or walk towards the door, or pushing the door slightly and opening the door, but its just a factual question really.

MR WELLS:   With great respect, your Honour, the problem here is that before one turns to drawing a line, one has to first of all establish by what principles is the court going to approach the drawing of the line.  Your Honour mentions this question about just exactly where in relation to the front door ‑ ‑ ‑

GAUDRON J:   You must concede, do you not, that the workplace did not enter the kitchen?

MR WELLS:   The workplace, no doubt, included the kitchen and its surrounds.

GAUDRON J:   Why would it not include the entire hotel complex?  He worked at a hotel complex.

MR WELLS:   The hotel complex, your Honour, was on land owned by the employer and the complex itself terminated by reason of a fence and gate beyond the swimming pool, and beyond that, still part of the employer’s premises, were other outhouses not really associated with the motel complex itself.  In particular, the units where this worker resided were disused; that is, they were not used at all as part of the hotel/motel complex, which is why they were available if the worker wished to have them, as he chose to do.

KIRBY J:   Yes, but he chose to, and it was part of the arrangement with this particular Frontier employer.  Why does it not simply arise out of this particular employment?  It is something that has happened because of this employment, it is very closely linked into the employment, it is on the premises, in a general sense, in the employment.  Why does it not simply arise out of?  Once you have the disjunctive “out of” or “in the course of”, this looks to me, “out of”.

MR WELLS:   There was a clear finding, your Honour, which was not the subject of discussion in the Court of Appeal or, for that matter, before the primary appeal judge that this accommodation was not an incident of his employment, not an incident of his employment and, on that basis, cases ‑ ‑ ‑

KIRBY J:   It was provided by the employer.  He could have lived outside.  It had certain convenience to the employer that he was there.  He had the computer with the acquiescence and knowledge of the employer and did some work for the employer and it is in employers’ interests to have a dedicated employee who happens to be on the spot and has quite a senior position in the employer’s enterprise.

MR WELLS:   The finding, your Honour, was that this particular arrangement was of benefit to the worker but of no particular benefit to the employer and we can put, and will put, your Honour, the example simply in order to make this point.

KIRBY J:   Do not the facts of the case, the flooding rains, the fact that the worker was there bailing out and trying to assist the employer’s enterprise in those circumstances, that is going to be difficult if he is living miles away.

MR WELLS:   Your Honour, that was part of the duties of his employment.  When he had ceased his employment he then returned to his place of residence.  His place of residence could have been across the road, up the street, next door, anywhere close by, not on premises owned by the employer or, indeed ‑ ‑ ‑

KIRBY J:   In fact, it was on premises.

MR WELLS:   Yes, and our complaint, your Honour, is that the Court of Appeal, with great respect to the Court of Appeal, wrongly gave significance to what we say is no part of either the policy of the Act or its terms.  It wrongly gave significance to ownership and boundaries, rather than to function and it failed to recognise and uphold what we say is the fundamental functional distinction established by the Act which is between workplace and place of residence.

This, your Honours, was a journey case.  This was not a workplace case, and the journey home was over.  Now, in the Court of Appeal there were only two judges who addressed the journey issue.  Strangely, and perhaps ironically, his Honour Justice Angel who, in the end, was part of the majority, did address, at least as an arguable proposition, the question of journey.

Chief Justice Martin certainly did because we say, with respect, his Honour’s approach was correct in seeing this as a journey case because his Honour stayed with the notion that there is a functional structure for the operation of this piece of social legislation, not a proprietary structure.  So, his Honour said, “Journey over”. 

KIRBY J:   But it is a beneficial statute and you have a disjunctive phrase and you have a very peculiar factual situation and it just seems to me open to the court to say, “Well, the category we are going to slip this into is ‘out of’”.

MR WELLS:   Your Honour, can I say, as your Honour rightly says, it is a remedial piece of legislation.  It is also a major piece of social legislation in the Territory, as in any State.  The deemed work injury provisions are clearly a central feature of the legislation and, particularly in the Territory where there is a mobile population, employer-owned worker accommodation commonly occurs.  It is not peculiar, it is a matter that is going to arise again and again and this decision, we respectfully submit, is productive of real uncertainty because there simply is no clear ratio in the Court of Appeal.  Indeed, the major propositions which might be thought to be called in aid of the ratio are only embraced in the end by a minority, not a majority.  It is a peculiar result in that circumstance.

In our respectful submission, the two errors that come out of it can be summarised in this way.  First of all, whatever the lounge room where the computer was may have been on occasions, on the working day on which this injury occurred, the lounge room was not part of this worker’s workplace and we put the proposition ‑ ‑ ‑

KIRBY J:   He did not actually get into the lounge room, did he?  He was at the door, as I understood the - - -

MR WELLS:   He had a part of his body in, your Honour, because he opened the door in order to turn the light on which was on the inside framework of the door.

KIRBY J:   That is when he got the shock?

MR WELLS:   That is when he got the shock.

KIRBY J:   Most people do not really go into the room, at least cautious people like judges, until they have switched the light on.  Maybe chefs are more bold.

MR WELLS:   There was, I think, an outside light, but I am not sure if it shone in that part of the veranda.  But the point is that he was standing on the doorstep.  There was a veranda, and there were a series of steps which he had negotiated in order to be on the very threshold.  But the proposition that we contend for – and there are two, only, that we say are important here – is this.  Whereas it would appear that Justice Mildren, the primary appeal judge, and Justice Riley in the Court of Appeal took the view that the lounge room was part of the workplace of the worker, notwithstanding that it had not been used on that day at all for work ‑ ‑ ‑

KIRBY J:   That would not matter, would it?  If you have employment and you go some days to certain places, you do not have to show that every day you are in every place.  For example, I am not in Sydney today, and I am not in Perth today.  They are part of my employment – or not my employment - my commission, from time to time. 

MR WELLS:   Assuming employment, your Honour, there are express exclusions in the Act for judges.  However, if your Honour, having completed sittings here, were to go back to Sydney – and that is in order to spend the weekend there, and to do non-judicial matters on the weekend ‑ your Honour would not be going to a workplace.  Your Honour would be going, at least, to your Honour’s place of residence, and if not that, to the workplace, but not to the workplace and not being present there in a work sense.  That is the second proposition. 

KIRBY J:   You could have fooled me.  It is a workplace as far as I am concerned. 

MR WELLS:   Well, your Honour, I am perhaps making unfair assumptions against your Honour’s work pattern.  Can I take another example.  Supposing there were a business, say, a motor repair business, in which there were two repair shops, not contiguous but separated, and the employee, from time to time, and from day to day, was detailed to one or the other.  And on the particular day of the injury, the employee was detailed to workshop A, and having completed his work – bearing in mind that that is what had happened in this case – the work had been completed ‑ the employee then goes to workshop B for the purpose of meeting a mate and going out for the evening, and he is injured in workshop B. 

It is not his workplace on that day.  And it is not his workplace on that day for two reasons.  The first is that the workplace, under the deeming provision that the worker has to be present at – because we are talking about the deeming provision that talks about injury when the worker is present at the workplace – the workplace that the worker has to be present at is the workplace that he has on that day attended for the purpose of work.  So if it is, under the section itself, focused upon what is happening on that working day.  There is a definition of “working day”. 

GAUDRON J:   Yes, but the definition does not say that he is present for the purposes of working, does it? 

MR WELLS:   No, your Honour.  It says that he attends at his workplace for the purpose of work.  But when one then works that into section 4(1), the conclusion is, we contend, that the workplace that the worker has to be present at when injured is the workplace that he has on that day attended for the purpose of work.  There is another reason why, in the ‑ ‑ ‑

GAUDRON J:   Well, can you take me to the provision that you say says that?

MR WELLS:   Your Honour, it works this way:  in section 4(1), which is what I have called the deeming provisions, the extension, the operative deeming provision is the one that says:

if the injury occurs while he –

that is the worker –

on a working day that he attends at his workplace –

(i) is present at the workplace –

Now, our contention is “the workplace”, when referred to in subparagraph (i):

is present at the workplace –

is the workplace which is referred to in the opening words of subsection (a), that is the workplace which is his work ‑ ‑ ‑

GAUDRON J:   On a working day.

MR WELLS:   On the working day that he attends.

GAUDRON J:   Yes.  Let us explore that a little.  It used not to be unusual – I suppose it is now – for people who worked continuous shifts to attend at their workplace on payday to receive their pay notwithstanding that they were rostered off.  Now, unless things are very much changed in the meat industry, I would assume that that could still be the position in the Northern Territory.

MR WELLS:   And that might be a case of a simple injury in the course of employment, without any reversion of any kind to the deeming provisions.  We would contend that if one were to apply the deeming provision it will not apply to such a circumstance and would not need to because it would be, in our respectful submission, a simple “in the course of”, because it is clearly incidental to their employment.  So, if it is not “in the course of”, then certainly it is “arising out of”.  The special case which, of necessity, has to be kept within some bounds because it is a special case ‑ ‑ ‑

KIRBY J:   Yes, and it is without limiting the generality, the meaning of the general expression, “out of or in the course of”.

MR WELLS:   Indeed.

KIRBY J:   That is the primary categorisation.

MR WELLS:   Yes, and these are ones where the legislature is saying whatever that means, we want these ones to be in the course of or arising out of as a deemed one.

GAUDRON J:   Prima facie, that seems that they are not at work for the purpose of working.  Once you say that ‑ ‑ ‑

MR WELLS:   No, they are not.

GAUDRON J:   But that is what I mean.  Prima facie, the deeming provision would seem to cover the case where they are not at work for the purpose of working because that would already be covered “arising out of or in the course of”.

MR WELLS:   No, with great respect, your Honour, because there is – and this, perhaps, leads me to the second proposition that, perhaps, I ought to try to slip in before I finish and that is this, that even if one is going to talk about the lounge room, in this case, as part of the workplace on that day, nevertheless the worker’s presence there, which is the final part of the deeming provision, when they are injured, at the moment of injury, the worker’s presence there was not a work presence and our contention is that this deeming provision only works and operates in a sensible way if one is to say that the presence in the workplace was a work presence or, to put it another way as some of the cases have suggested, was a presence in connection with his work.

Now, our contention is that the worker on the occasion that he arrived home after work was not present in what might otherwise be called the workplace because he was not present there in connection with his work.  Justice Mildren, the primary appeal judge, required only physical presence and no qualitative presence of that kind.

GAUDRON J:   But if you did that, what work – if you limited the subparagraph in the way you contend, what work would it have to do?

MR WELLS:   Can I answer that, your Honour, in this way, by putting the reverse example and it is really a development of an example that comes out of one of the cases, the bounce ball.  The example is put of a cleaner who is working in an emporium in the city and is working before the shop opens but finishes his or her work after the time at which the shop opens and, having finished, decides that before going home he or she will go shopping in the emporium and, for that purpose, stays within what obviously had been the workplace and in the course of shopping, suffers an injury.  Our contention is that his or her presence in the workplace is not the presence that is referred to in that deeming provision because it is not in connection with his or her work.

That, in our respectful submission, is the second reason why the Court of Appeal, in this case, has taken a wrong turning.  As I say, what lies behind the error, in our respectful submission, is the absence of recognition

that this is a journey case.  That what we are really analysing here is not conveyancing principles, not ownership, but function.  The function is as between workplace and home.  If the Court pleases.

GAUDRON J:   Yes, thank you, Mr Wells.  Mr Barr.

MR BARR:   Yes, your Honour.

GAUDRON J:   We need only hear you on the undertaking at this stage.

MR BARR:   May it please, your Honour.

The difficulty with the undertaking as presently given, if your Honour pleases, is that the applicant has - since the time of the hearing before Justice Callinan, it has become apparent that the applicant was in liquidation at the time the special leave application was made, and similarly ‑ ‑ ‑

KIRBY J:   Does that require some alternation of our records?  Do they need leave to commence these proceedings?

MR BARR:   Your Honour, I do not know the answer to that question.

KIRBY J:   What is the provision of company law governing the proceedings by a company in liquidation?

MR BARR:   It would have to be dealt with under the Corporations Law, if your Honour pleases.

KIRBY J:   Anyway, you do not take any point on that?  What is the point that you make?

MR BARR:   The point I take is that because of the circumstances of the applicant the worker needs to be protected, and a further undertaking ought to be required from the entity which is actively pursuing the appeal, that is, the nominal insurer, so that the undertaking ‑ ‑ ‑

KIRBY J:   Would one not infer that behind this particular applicant and funding this litigation is a compulsory insurer, and that in the ordinary way the compulsory insurer will indemnify the company now in liquidation for its liability to your client?

MR BARR:   One would ordinarily infer that, your Honour, except that the insurer was HIH Insurance which is now in provisional liquidation.  We are now two times removed from the applicant with the Northern Territory nominal insurer now agitating the appeal.  In my respectful submission, if

special leave were granted by the Court, the undertaking previously required of the applicant should be a direct undertaking required of the entity now actively pursuing the appeal, namely, the nominal insurer.

KIRBY J:   If special leave is refused, that problem does not arise?

MR BARR:   Exactly, there is no duty at all, your Honour.

GAUDRON J:   It is a question of your costs of the special leave application if it is refused.  That is the problem.

MR BARR:    Well, your Honour, that has already been resolved.  Your Honour, with respect, that has been resolved to the extent that the nominal insurer has agreed to underwrite the existing undertaking ‑ ‑ ‑

GAUDRON J:   For this application?

MR BARR:   Correct, your Honour, yes.

GAUDRON J:   Well, then, you accept then that no special order would need to be made as to costs if special leave were refused?

MR BARR:   Correct, your Honour.

GAUDRON J:   Thank you.

MR BARR:    May it please your Honours.

GAUDRON J:   You do not need to reply to that, do you, Mr Wells?

MR WELLS:   No, your Honour.

GAUDRON J:   No.

The proposed appeal which raises only a question as to the application of the provisions of the Work Health Act 1986 (NT) to the somewhat unusual facts of this case does not enjoy sufficient prospects of success to justify the grant of special leave.  Accordingly, the application is dismissed with costs.

MR BARR:    If the Court pleases.

AT 9.26 AM THE MATTER WAS CONCLUDED