Barnes v Australian Telecommunications Corporation

[1996] QCA 1

IN THE COURT OF APPEAL	[1996] QCA 001
SUPREME COURT OF QUEENSLAND

Appeal No. 94 of 1995.

Brisbane

[Barnes v. ATC]

BETWEEN:

NEIL PHILLIP BARNES

(Plaintiff) Respondent

AND:

AUSTRALIAN TELECOMMUNICATIONS

CORPORATION

(Defendant) Applicant

___________________________________________________________________

Pincus J.A.
McPherson J.A.

Shepherdson J.

___________________________________________________________________

Judgment delivered 02/02/1996

Separate concurring reasons for judgment of each member of the Court
___________________________________________________________________

1.         APPLICATION FOR LEAVE TO APPEAL IS ADJOURNED TO A DATE TO BE FIXED WITH LEAVE TO THE APPLICANT DEFENDANT TO RENEW THE APPLICATION IF AND WHEN THE ACTION IS DISPOSED OF IN THE DISTRICT COURT.

2.         THE NOTICE OF APPEAL IS STRUCK OUT.

3.         THE COSTS OF THE PROCEEDINGS IN THIS COURT ARE RESERVED.

___________________________________________________________________

CATCHWORDS: DECLARATION - whether trial judgment within the meaning of
s. 92(1) District Courts Act 1967 - whether merely interlocutory
so that leave to appeal is necessary.
Ss. 4, 92 District Courts Act 1967.
Hall v. Nominal Defendant (1966) 117 C.L.R. 423.

LEAVE TO APPEAL - issue of validity of letter by way of notice of election under Safety, Rehabilitation and Compensation Act 1988 (Cth) - whether question of law - whether important question of law - whether, if notice of election is invalid, the suit brought is subject to the three year time limitation imposed by s. 11 of the Limitation of Actions Act 1974; whether leave to appeal can be sought on this point when no order made in District Court relating to it.

Ss. 24, 27, 44, 45 Safety, Rehabilitation and Compensation Act
1988 (Cth)

S.11 Limitation of Actions Act 1994

Counsel:	Mr S Williams Q.C. with him Mr R Dickson for the applicant. Mr C Jensen for the respondent.
Solicitors:	Phillips Fox for the applicant. Gayler Cleland Towne for the respondent.

Hearing date:02/06/1995

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 94 of 1995.

Brisbane

Before Pincus J.A.
McPherson J.A.
Shepherdson J.

[Barnes v. ATC]

BETWEEN:

NEIL PHILLIP BARNES

(Plaintiff) Respondent

AND:

AUSTRALIAN TELECOMMUNICATIONS

CORPORATION

(Defendant) Applicant

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 02/02/1996

The appellant, the defendant in the proceedings below, applies to this Court for a

declaration that its appeal has been properly instituted and alternatively leave to appeal.

The proceedings were begun by plaint issued in the District Court on 6 August 1994

claiming damages for negligence for injuries incurred by the respondent on 8 August 1990

while carrying out instructions in the course of his employment by the appellant as a

linesman.

The issues in the appeal concern the operation of the Safety Rehabilitation and
Compensation Act 1988 (Cth) (“the Act”). Comcare, a body corporate, is established

under the Act to deal with (among other matters) claims by employees of the

Commonwealth in respect of injuries arising out of or in the course of employment. Section

24 makes Comcare liable to pay compensation to an employee whose injury results in a

permanent impairment; however, Comcare is not liable to pay compensation where it

determines the degree of impairment of the employee to be less than 10%. Section 27

provides for the payment of additional compensation by Comcare for non-economic loss.

Section 44 provides that no action for damages lies against the Commonwealth in respect

of such injuries, but this provision is subject to s.45, which provides, in part:

“Where:
(a) compensation is payable under section 24, 25 or 27 in respect of an
injury to an employee; and
(b) the Commonwealth...would, but for subsection 44(1), be liable for
damages for any non-economic loss suffered by the employee as a result of
the injury;

the employee may, at any time before an amount of compensation is paid to the employee under section 24, 25 or 27...elect in writing to institute an action or proceeding against the Commonwealth...or other employee for damages for that non-economic loss.”

The Act does not prescribe any particular form of election, other than that it be in

writing.

Prior to the action for damages being heard, a declaration was made in the District

Court that a letter dated 2 March 1993 constituted a valid notice of election under s.45 of

the Act . On the same day, an application by the appellant to strike out the action was

refused. The appellant filed a Notice of Appeal against both orders in this Court on 19
May 1995, without having sought leave to appeal.

The question arises whether the declaration made by the learned District Court

judge was a final judgment within the meaning of s. 92(1) of the District Courts Act 1967;

the appellant contends that it was such a judgment and the respondent says it was merely

interlocutory, so that leave to appeal is necessary under s. 92(2). It seems clear enough

that the declaration which is in issue is a "judgment" within the meaning of the definition in

s. 4 of the District Courts Act, but is the judgment a final one?

It is plainly not final in the sense that it finally disposes of the parties’ rights in the

whole proceeding, nor in the sense that it finally disposes of the parties’ rights in the whole

dispute. Despite the respondent’s success in obtaining the declaration, he may yet fail to

obtain damages if he is unable to satisfy the Court that there has been any act or omission

on the part of the appellant making it liable for the respondent’s injury. But the declaration

made in the present case is final in the sense that it appears to produce an issue estoppel.

The point decided by the primary judge cannot be re-litigated between the same parties;

that contrasts the matter with a decision not to set aside a default judgment: Hall v.

Nominal Defendant (1966) 117 C.L.R. 423 at 440, Carr v. Finance Corp. of Australia Ltd

(No. 1) (1981) 147 C.L.R. 246 at 248. The argument that the declaration is not a final

judgment depends entirely on the proposition that, for a judgment to be final, it must finally

dispose of the whole action rather than merely deciding a point of law or fact involved in it.

Here, although not so expressed, the summons on which the judgment was based asked

in effect for determination before trial of one of the questions raised in the pleadings.

There is certainly an authority which favours the appellant: in Tag Pacific Limited

v. McSweeney (1992) 34 F.C.R. 438 a similar question arose in the Federal Court and it

was decided that the judgment in question was final, not interlocutory. What occurred there,

in an action for damages, was that the judge determined the question of liability first, giving

judgment for damages to be assessed. The defendant applied for leave to appeal, which

was necessary if the judgment was interlocutory, but it was determined that leave to appeal

was unnecessary. But in Landsal Pty Ltd v. R.E.I. Building Society (1993) 113 A.L.R. 643

at 653 the Full Court of the Federal Court criticised the decision in the Tag case as being

inconsistent with previous decisions.

The Full Court’s view appears, with respect, to be correct. In John Grant & Sons Ltd

v. The Trocadero Building Investment Company Limited (1938) 60 C.L.R. 1, a builder sued

on a progress certificate. There was a cross-action and each party demurred to some of

the other party’s pleadings; the points so raised were decided by the Supreme Court of

New South Wales and judgment entered on the demurrers, with leave to amend: (1937)

37 (N.S.W.) 535. The plaintiff appealed as of right and no point was taken about the right

to do so, but Dixon J. (p. 35) with whom Rich J. (p. 19) agreed, held that the judgment was

interlocutory because it did not determine the action.

Then in Apple Computer Inc. v. Computer Edge Pty Ltd (1984) 1 F.C.R. 549 the

Federal Court had to consider a number of claims under the Trade Practices Act 1974 and

the Copyright Act 1968. Permanent injunctions were granted, but the whole case was not

disposed of because claims for damages were left unresolved; it was ordered that if they

were to be pursued certain procedural steps should be taken. An appeal was filed in the

High Court as of right, but was held to be incompetent: (1984) 54 A.L.R. 767. Gibbs C.J. remarked:

" What is plain is that the judgment of [the Federal Court] comprised two orders which, viewed by themselves and apart from the rest of the judgment, were final orders, and one order which was plainly interlocutory. The result of the judgment as a whole was that some of the questions in issue in the case were determined and others were not. "

After reference to the judgment in John Grant & Sons just referred to, Gibbs C.J. held that

the judgment of the Federal Court was not final.

It therefore appears to be established that if a judgment, although finally determining

some of the issues in an action, leaves another or others undetermined, it is not a final

judgment for the purposes of appeal provisions such as those being considered here; the

High Court’s decision in the Computer Edge case thus vindicates the decision of the Full

Court of the Supreme Court of Victoria in Dunstan v. Simmie & Co. Pty Ltd [1978] V.R. 669

at 670.

Apart from expressing some mild disappointment that none of the three counsel

who appeared in the case seems to have found the directly relevant authorities to which

reference is made above, it is unnecessary to say anything more on this point.

As has been mentioned, in addition to the declaration that the letter dated 2 March

1993 constituted a valid notice of election, the District Court ordered that an application by

the appellant to strike out the action be refused, and that refusal, it is clear, was an

interlocutory order. If leave to appeal against the declaration granted is to be given then

it would be convenient, as it seems to me, also to give leave to appeal against the refusal

to strike out. The question is whether leave should be given on the ground that, as is

argued, the case involves an important question of law.

Attention was drawn by both parties to a question of law which is potentially

involved, namely, whether the suit brought is subject to the three year time limitation

imposed by s. 11 of the Limitation of Actions Act 1974. That was a matter raised by the

application the plaintiff made to the primary judge, but not determined by his Honour; it was

unnecessary to deal with it because the plaintiff desired a decision on the point only if it

were concluded that the letter dated 2 March 1993 mentioned above did not constitute a

valid notice of election under s. 45 of the Act. In that event, the plaintiff proposed to give

a proper notice of election and to reinstitute the action, the three year time limit having

expired. Counsel for the plaintiff suggested that we might so arrange matters as to bring

about a decision of the limitation point if it became necessary, but this Court does not have

before it any order made by the District Court relating to that point; no appeal has been or

could be brought with respect to it.

It follows that, although the limitation point is an important one, it cannot be taken

into account in determining whether the orders the District Court judge made are such as

to warrant leave to appeal. The question whether leave should be given depends upon

whether the judge’s decision on the efficacy of the alleged election involves an important

question of law.

His Honour, in his lucid reasons, reached his conclusion on two grounds. With

some hesitation, his Honour concluded that the letter in question, although elliptical,

sufficiently conveyed that the plaintiff was electing to proceed to institute an action. His

Honour further held that, although the plaint alleged a "permanent partial bodily disability

of some 5%", the case was one in which compensation was payable within the meaning
of s. 45(a) quoted above.

It appears to me that the proper interpretation of the requirement in s. 45 that there

be an election in writing to institute an action is a matter of law, although applying that

interpretation to a particular set of facts is not such a matter. What the judge held in the

present case was, in effect, that although only by implication, the letter sufficiently indicated

an election to sue; there is certainly nothing in the letter which expresses that intention,

either in the words of the Act or in any other language. I am not prepared to accept that the

conformity of particular language to the requirement of the Act can involve only a factual as

opposed to a legal issue. Further, the other point ("the 10% point") dealt with by the

primary judge involves a legal question and that is whether s. 24(7), which denies a right

of compensation where the Commission determines that the degree of permanent

impairment is less than 10%, is relevant when the court determines whether compensation

is payable within the meaning of s. 45 of the Act.

These points attain sufficient importance, in my view, not because it is shown that

deciding them will necessarily affect any other identified matters, but because of the very

large number of persons who are subject to the relevant Commonwealth legislation; that

is likely to give importance to legal points which arise under it.

I pass now to consider whether, although there are important questions of law in the

case, leave should be given. It will be noted that the existence of an important question of

law or justice is a precondition of granting leave only; the Court has, in the end, a discretion

whether to grant leave or refuse it.

The case has become quite complex procedurally and there is the possibility that

it could produce a number of further hearings - of the appeal (if leave is granted) the trial

and perhaps a further appeal. One can understand the anxiety of the applicant for leave,

the Australian Telecommunications Corporation, to obtain an authoritative decision on the

points which have been discussed. But one or both may turn out to be academic; for

example, the action may fail on the merits. Further, the 10% point may conceivably depend

on the facts found, as to the extent of the plaintiff’s injury. It seems to me desirable, on the

whole, if there is to be a trial, that it occur before rather than after the matters raised here

are further considered by this Court. The purpose is to ensure that there be no

inconvenient fragmentation of the issues.

The question arises as to what should be done with the application for leave; if it

is dismissed, then an argument may be raised that the District Court’s decision on the

points discussed may not be able to be challenged, by way of an appeal against a final

judgment in favour of the plaintiff against the applicant corporation. To safeguard the

applicant’s position, the application for leave to appeal should be adjourned to a date to

be fixed, with the intention that it may be renewed if the corporation thinks fit, if and when

the action is disposed of by the District Court. I think the notice of appeal should, however,

be struck out. The costs of the proceedings in this Court will be reserved.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 94 of 1995

Brisbane

Before McPherson J.A.
Pincus J.A.
Shepherdson J.

[Barnes v. Australian Telecommunications Corporation]

BETWEEN

NEIL PHILLIP BARNES

(Plaintiff) Respondent

AND

AUSTRALIAN TELECOMMUNICATIONS CORPORATION

(Defendant) Appellant

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 2nd day of February 1996

I have had the advantage of reading the reasons, with which I agree, of Pincus J.A.

The principal question raised for determination in the court below was whether a

letter dated 2 March 1992 to the defendant from solicitors for the plaintiff in this action

amounted, within the meaning of s.45(1) of the Commonwealth Employees Rehabilitation

and Compensation Act 1988, (now the Safety Rehabilitation and Compensation Act

1988 (Cth)), to an election in writing to institute an action or proceeding against the

Commonwealth or Commonwealth authority for damages for economic loss.

The letter was expressed in the following terms:

"Dear Sirs,

Re:  Neil Phillip BARNES - Personal Injuries Claim

We act for the abovenamed.

Would you please advise whether our client will continue to receive and be entitled to receive payments under Section 19 of the Act, even when any action instituted as a result of such an election is finally determined.

We understand our client has not received any payments under Section 24, 25 and 27 of the Act. Accordingly, we would ask that you make no payments under these sections.

We look forward to your urgent advices in this regard."

The learned primary judge held that the letter did involve an election in terms of s.45(1) of

the Act, and he made a declaration accordingly.

The defendant now appeals, or alternatively seeks leave to appeal, against that

decision. Having read what Pincus J.A. has written on this subject, I am in agreement with

his view that the appeal is not one which may be brought to this Court as of right. There is

now a substantial body of authority in Australia to the effect that the determination of a particular issue, forming only a particular element in a cause of action or being part of a

wider question in a proceeding, does not ordinarily amount to a "final judgment" within the

meaning of an appeal provision like s.92(1) of the District Courts Act 1967. Such a

decision is not a final determination of the parties' rights in the action. See the authorities

cited by Pincus J.A., to which may be added a reference to the decision of the Full Court

of Western Australia in Metcalf v. Permanent Building Society (1992) 10 W.A.R. 145.

Although the decision in this case is not a final judgment in terms of s.92(1), it is

open to this Court acting under s.92(2) to grant leave to appeal. The power to grant leave

is subject to s.92(2A), which precludes its being given "unless some important question of

law or justice is involved". I am in no doubt that the interpretation of the letter or its effect

in the context of s.45(1) of the Act involves a question at least partly of law. Some authority

for that view may perhaps be found in Symonds v. Ivanhoe Gold Corporation Ltd. (1904)

7 W.A.L.R. 69 (for subsequent proceedings see Ivanhoe Gold Corporation Ltd. v.

Symonds (1906) 4 C.L.R. 642). But in any event the meaning of the expression "elect" in

s.45(1) is not necessarily a simple question. Under earlier legislation the critical question

was whether the worker had exercised his "option" to accept compensation or to take

proceedings at law. In distinguishing this "option" from an election, Viscount Simon in

Young v. Bristol Aeroplane Ltd. [1946] A.C. 163, 172, said that, if "election" in the full

sense was meant, "it would be necessary for the workman to know all that was material to

determine his choice". See also Dey v. Victorian Ry.Commrs. (1949) 78 C.L.R. 62,

where the decision in Young's case is considered.

Whether the word "elect" in s.45(1) bears some such meaning is a matter that was not considered in the present case. The question was seen to depend simply on the interpretation of the letter or its contents. If the word has the wider connotation suggested

by Viscount Simon, or if at least it requires something more than a consideration of whether

an "option" has been exercised, it may be necessary to undertake some investigation of

facts antecedent to the letter of 2 March 1993 or the matter it communicated. On the

material before us now, it would not be possible adequately or satisfactorily to resolve that

question.

One may have some sympathy with the wish of the parties, and particularly the

plaintiff, to have this point determined in advance of and without incurring the expense of

a full trial. As matters stand, however, it does not seem possible to achieve that outcome,

either satisfactorily or at all, by granting leave to appeal at this stage. Despite first

impressions, the question is not one that lends itself to determination by a means that,

whatever its form, resembles in effect the procedure by demurrer. On the other hand, if

leave is refused, the consequence may be to bind the parties to a decision on a point

which may, on one view, possibly end up proving to be decisive of the whole action. It is

a vice of the distinction between "final" and "interlocutory" judgments that a determination

may be interlocutory only for one purpose such as appeal, but final for another, such as the

determination of a particular point in an action.

Whether that is so of the declaration made in the present case is something on

which it would be unwise to venture an opinion. The question was not argued before us in

those terms. That being so, I see no alternative to the course proposed by Pincus J.A. as

the means of preserving the rights and interests of both parties. The notice of appeal

should be struck out; but the application for leave to appeal should be adjourned to a date

to be fixed, with leave to the applicant defendant to renew the application if and when the action is disposed of in the District Court. The costs of the proceedings in this Court

should be reserved.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No.94 of 1995

Brisbane

Before Pincus J.A.
McPherson J.A.
Shepherdson J.

[Barnes v. ATC]

BETWEEN

NEIL PHILLIP BARNES

(Plaintiff) Respondent

AND

AUSTRALIAN TELECOMMUNICATIONS

CORPORATION

(Defendant) Applicant

REASONS FOR JUDGMENT - SHEPHERDSON J.

Judgment delivered 02/02/1996

I have read the reasons for judgment prepared by Pincus J.A. and McPherson J.A.

I agree with the orders proposed and with their reasons.