Baggs v Waratah Engineering Pty Ltd

[2014] HCATrans 108

[2014] HCATrans 108

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S6 of 2014

B e t w e e n -

MARK WAYNE BAGGS

Applicant

and

WARATAH ENGINEERING PTY LTD ACN 001891729

Respondent

Application for special leave to appeal

FRENCH CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 MAY 2014, AT 10.02 AM

Copyright in the High Court of Australia

MR J.E. SEXTON, SC:   May it please the Court, I appear for the applicant.  (instructed by Lee Sames Egan)

MR I.D.M. ROBERTS, SC:   May it please the Court, I appear with my learned friend, MR S.B. LOWE, for the respondent.  (instructed by Moray & Agnew)

FRENCH CJ:   Thank you, Mr Roberts.  Yes, Mr Sexton.

MR SEXTON:   Thank you, your Honour.  The special leave question, your Honour, is whether a worker who is travelling in the course of employment to a place at which it is accepted he will be working as a coalminer is a coalminer within the meaning of workers compensation legislation.  The decision is important because it affects both significant statutory workers compensation entitlements and significant common law rights for injured coalminers.

FRENCH CJ:   Is this not at heart the application of a relational term, that is workers employed in or about a mine, to a particular set of facts and the value of their judgment.  What is the question of principle to which it gives rise?

MR SEXTON:   The way in which the Court of Appeal has determined the matter is that the factual investigation is limited to questions of physical proximity to the place of work rather than, as we contend, a factual evaluation of whether there is a connection between the business of mining coal at the coalmine and the employment.  So that the contention for the applicant which was picked up by Justice Basten – I will take your Honours to the passage in a moment – is that if the employment requires a worker to carry out work at a mine then he is a coalminer, not only once he gets to the mine but whilst he is travelling there.  But the way in which the Court of Appeal decided it is that there is a two‑stage test.  Firstly, there has to be that connection and, secondly, there has to be an injury occurring at least in close proximity to the mine.

HAYNE J:   Would it be a part of your argument that the decision in Ellavale is wrong?

MR SEXTON:   No, your Honour.

HAYNE J:   Why not?

MR SEXTON:   Because the decision in Ellavale concerns somebody who was injured within the geographical boundaries of the mine.  The question that was determined in Ellavale was whether that injured worker had to be employed by the mine owner.  That was the ratio in that case, and some of the reasons in Ellavale support the proposition for which we contend here, in particular what Justice Handley said at paragraph 6 where he picked up a sentence which is cited by Justice Meagher in these reasons, appeal book 42, just below line 40.  This is a part citation from the reasons in Owens v Campbell and the sentence which Justice Handley picked up in Ellavale is the second part of the first sentence, just at about line 42.  What the Master of the Rolls was saying there was that, as well as it being:

pretty well settled that the word ‘about’ . . . carries with it the idea of physical proximity; but it also involves the idea of an employment connected with the business carried on at the place indicated.

That is picked up later in the example given there of the coachman who comes to the factory but does not work at the factory, and it is the last words at the top of page 43:

because it was not concerned in any way with the business of the factory.

That is, the employment.  So our point is that if somebody has employment which is connected with the business of mining coal at a coalmine, then he is a coalminer.  It is not then a requirement in addition that the injury occur at the coalmine, nor is it answered as the respondent contends in its written submissions.  The proposition for which the respondent contends is that the section is satisfied if there is a worker who habitually or usually works at a coalmine.  So that type of worker falls within the exempting provisions, whether or not that worker is actually physically located at the coalmine.

That was a point that was noted but not decided by Justice Sackville at paragraph 43 of the Court of Appeal judgment at page 50 of the appeal book.  So that what is contended for by the respondent is that there must be a three‑stage test.  The first inquiry is:  is the injured worker’s employment for purposes connected with the business or operation of a mine; secondly, if yes, did the injury occur in close proximity to the mine; and thirdly, if no, did the injured person work habitually or usually at a mine?

Justice Meagher said it is a two‑stage test.  You do not go to the third one; that does not matter.  Justice Sackville said it is not necessary to decide that.  But the majority decision requires two tests to be satisfied:  the connection with employment; and the injury occurring at least in close proximity to the mine.  Our submission is it is far simpler than that.  All that is required is that the worker’s employment be for purposes connected with coalmining at the mine.  This is not a journey claim.  That would be relevant if it was a claim not for common law damages but for statutory entitlement.

It is not a journey claim because the applicant was being paid to travel to the mine.  But the reasoning of the majority of the Court of Appeal, which is the reasoning of Justice Meagher, would result in journey claims not being dealt with as if the worker was a coalminer, as well as cutting back significantly on common law rights.  We have said in our written submissions, notwithstanding the form of this legislation, the substance of it is to preserve existing statutory and common law rights.  It is therefore beneficial legislation and it should be read beneficially, and what Justice Basten said at page 35, going over from the bottom of page 35 and going over to 36, encapsulates our argument.  What his Honour said there was:

It is no doubt true that the phrase “in or about a mine” imposes a requirement of physical proximity.  However, that refers to the place at which the work is to be carried out.  It does not refer to the place at which the injury occurs.

FRENCH CJ:   Do you say that that goes to the satisfaction of the definition for the purpose of determining whether a person is a coalminer?

MR SEXTON:   Yes, your Honour.  So the way in which the words “in or about a mine” can be applied include those words from the Master of the Rolls in Owens v Campbell, that is:

involves the idea of an employment connected with the business carried on at the place indicated.

That is our point.

HAYNE J:   Do you accept at application book 35 ‑ see between lines 10 and 20 the quote out of Ellavale ‑ do you accept the second sentence:

the focus is on the actual work being done by the worker at the time of his injury –

MR SEXTON:   No, your Honour, but that is not ratio of Ellavale.

HAYNE J:   But I had understood Justice Basten – correct me if I am wrong – in paragraph 8 of 35, 36 to – he speaks of imposing “a requirement of physical proximity” to be referring to physical proximity between mine and accident.

MR SEXTON:   No, your Honour.

HAYNE J:   What is the physical proximity?  You embrace paragraph 8, do you not?  This is your argument you said?

MR SEXTON:   Yes, your Honour.

HAYNE J:   So what is the physical proximity that you say is relevant?

MR SEXTON:   The work must be in or about a mine, so that if you are the person who works in or about a coalmine you are a coalminer, but the physical proximity does not extend to the place where the injury occurs.  If you are a person who works in one coalmine and you are travelling to another coalmine to work there as a coalminer, then you remain a coalminer during that journey.  If the injury does not occur within a very short distance of a coalmine, nevertheless you are a coalminer; that is the underlying point.  That is why it is an important point, because the reasons of the Court of Appeal would mean that that type of accident could not be considered factually as a coalmining case because the court said the injury must occur at a certain physical location.

HAYNE J:   Nothing, I think, has been said at any stage of these proceedings about the fact that the mine to which this person was travelling was a mine not in New South Wales.

MR SEXTON:   That was raised at first instance.  It was dealt with by the primary judge.  It turned on the particular form of coalmines regulations and the definition of “mine”.  It was not taken up by the respondent in the Court of Appeal, but it turns on the different regulation.  Previously that regulation had defined “coalmine” using certain words and with the qualification in New South Wales.  It was amended subsequently.  It did not include the words in New South Wales and it was accepted that this particular mine was a mine within the meaning of the coalmining legislation and thus picked up by the workers’ compensation legislation, so it is not an issue which any longer arises in this litigation, your Honour.

FRENCH CJ:   The question, as I understand it, is simply one of characterisation of the applicant as a coalminer, within the meaning of the definition, at the time that he suffered the accident.

MR SEXTON:   Yes, your Honour.  But it is an important question ‑ ‑ ‑

FRENCH CJ:   No, I am not trying to trivialise it.  I am just trying to understand what the true question is.

MR SEXTON:   That is, your Honour, and it is important to understand that the way in which ‑ ‑ ‑

FRENCH CJ:   Because once he is so characterised, that then attracts the preservation of the entitlements that might not otherwise accrue.

MR SEXTON:   Which are significant, but the general public importance is because, if the majority in the Court of Appeal are correct that there is this additional criteria of the injury occurring very close to or at the mine, then that adds a factual inquiry which forecloses a worker satisfying a different factual inquiry.  So, it is not just a question on the facts; it is stating a principle which will be of general application.  For that reason, in our submission, it should attract a grant of special leave.  May it please the Court.

FRENCH CJ:   Thank you, Mr Sexton.  Yes, Mr Roberts.

MR ROBERTS:   Your Honours, my learned friend submits that the importance of the issue arises because – that there is a requirement that the injury must occur at the mine site and in particular that a coalminer, whilst travelling to or from work or between mine sites, would be disentitled to the enhanced benefits.  That is, encapsulated by paragraph 13 of my learned friend’s submissions which are at page 59 in the application book, where he says:

No worker, even one whose usual duties involve only digging out coal within a mine, will obtain the benefit of Schedule 6, Part 18 whilst travelling to or from the place of work –

We submit that is incorrect.  That would not be the effect of the Court of Appeal’s decision because that worker would be engaged on a journey, within the meaning of the Act, which this worker was not, and whilst engaged on a journey a worker is in the course of his employment.  So if the course of his employment comprehends – involves one whose usual duties involve only digging out coal within a mine, he would remain protected whilst undertaking such a journey.  Thus the effect of the Court of Appeal’s decision is really restricted to those people whose general employment is not in or about a mine, as this man’s general employment was not, but who are, for the purpose of their employer’s business, travelling to a mine but have not got there when they suffer their injury.

For those reasons, we submit, it is not a matter of general public importance, and we also submit that no point is taken that the decision in Ellavale was wrong or in error and, in particular, the statement by his Honour Justice Handley which was relied on by the majority in this case that the focus is on the actual work being done by the worker at the time of his injury provided this was substantially centred in or about a mine.  For those reasons, we submit, this is not a matter for special leave.  We can say no more than that, but we rely on our written submissions.

FRENCH CJ:   Yes, thank you.  Yes, Mr Sexton.

MR SEXTON:   Your Honours, in answer to the first proposition put by my learned friend, what Justice Meagher said at application book 48 in paragraph 39, with which Justice Sackville agrees, identifies the two‑stage test which I made submissions about before, where his Honour said:

the correct question, which is whether at the time the accident happened the work in which Mr Baggs was engaged was being undertaken in or in physical proximity to the mine and for the purposes connected with the business or operation of the mine.

Our submission is that it is only the second which is relevant, not the first, and the effect of what the majority has said in that sentence does preclude somebody who was working at a mine and goes to another mine, or who is going to the mine, from being sufficiently close to it to get the benefit of the journey claims, and that is made plain by the first full sentence on page 49.  So my learned friend’s contention that this case raises a confined issue and not one of general application is misplaced.

FRENCH CJ: Thank you. This application for special leave to appeal from a decision of the Court of Appeal of New South Wales concerns the construction and application of the term “workers employed in or about a mine”, which defines the term “coal miners” used in clause 3(4) of Part 18 of Schedule 6 to the Workers Compensation Act 1987 (NSW). The decision of the majority in the Court of Appeal on the question of construction and the application of a relational term to the facts of the case is not attended with sufficient doubt to warrant the grant of special leave. Special leave should be refused with costs. The Court will now adjourn to reconstitute.

AT 10.21 AM THE MATTER WAS CONCLUDED