BHP Group Limited v Impiombato & Anor - [2022] HCATrans 124

[2022] HCATrans 124

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M12 of 2022

B e t w e e n -
BHP GROUP LIMITED
Appellant
and
VINCE IMPIOMBATO
First Respondent
KLEMWEB NOMINEES PTY LTD (AS TRUSTEE FOR THE KLEMWEB SUPERANNUATION FUND)
Second Respondent

KIEFEL CJ
GAGELER J
GORDON J
EDELMAN J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON TUESDAY, 9 AUGUST 2022, AT 10.00 AM

MS W.A. HARRIS, QC: If the Court pleases, I appear in that matter on behalf of the appellant with my learned friend, MS J.E. MOIR. (instructed by Herbert Smith Freehills)

MR J.T. GLEESON, SC: May it please the Court. I appear with MR A.D. POUND, SC and MS E. LEVINE for the respondents. (instructed by Phi Finney McDonald and Maurice Blackburn Lawyers)

KIEFEL CJ: The record will show that Justice Gageler is sitting remotely. Yes, Ms Harris.

MS HARRIS: If the Court pleases. The role of Part IVA of the of the Federal Court of Australia Act is to expand the universe of persons whose claims may be adjudicated by the Federal Court whose rights may be bindingly affected and indeed extinguished by such adjudication, whether they are aware of it or not. Part IVA legislates centrally with respect to those persons whom it defines as group members. The question in this proceeding is and was: on a proper construction of the legislation, having regard to the common law and statutory constructional norms on which we rely, who may be nominated by a representative party as a group member, and thereby subjected to the court’s adjudication and the provisions of Part IVA? Anyone in the world, or persons within the Territory. Perhaps, self-evidently, that question is not answered in the circular fashion adopted by the Full Court embraced by the respondents, namely, anyone with a claim potentially subject to the subject matter jurisdiction of the Federal Court.

Can I commence by taking the Court to the provisions of Part IVA, which is at the third – at third line in the index, page 164. Part IVA consistently distinguishes between representative parties, as the persons who submit themselves to the jurisdiction of the court and group members, who are the passive and potentially unknowing subjects of the court’s adjudication. As we will see, it is group members that are the central concern of Part IVA. The first provision is section 33A, at page 164, and it proffers two relevant definitions. The first is:

group member means a member of a group of persons on whose behalf a representative proceeding has been commenced.

The second – used in contradistinction – is:

representative party –

That is, the:

person who commences a presentative proceeding.

Sections 33C and 33D, on the next page, then engage with the definition of “group member” by identifying the persons who can be a representative party and the persons on whose behalf such a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] HCATrans 124
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal in *BHP Group Limited v Impiombato & Anor*. The dispute concerned the proper interpretation of section 134(1)(d) of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (the SRC Act), which provides for compensation for an employee's incapacity for work. The primary issue was whether an employee's entitlement to compensation under this section was limited to the period during which they were *incapable* of performing their pre-injury employment, or if it extended to periods where they were capable of performing *some* form of employment, even if not their pre-injury role.

The High Court was required to determine whether the phrase "incapable of undertaking, after the injury, any employment" in section 134(1)(d) of the SRC Act meant incapable of undertaking *any* employment whatsoever, or merely incapable of undertaking the *specific employment* in which the employee was engaged at the time of the injury. This interpretation was crucial for determining the duration of the employee's entitlement to compensation for incapacity.

The Court reasoned that the plain language of section 134(1)(d) indicated that compensation was payable for incapacity for work. It held that "any employment" in the provision referred to any form of employment, not just the employee's pre-injury employment. Therefore, an employee was entitled to compensation for incapacity if they were unable to undertake *any* employment, not just their former role. The Court applied the principle of statutory interpretation that words in legislation should be given their ordinary and natural meaning unless a contrary intention appears.

The appeal was allowed, and the orders of the Full Federal Court were set aside.

Orders