Buyong v Readymix Concrete (NT) Pty Ltd

[1990] HCATrans 110

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Darwin No Dl of 1989

B e t w e e n -

MAHAE BUYONG

Applicant

and

READYMIX CONCRETE (NT) PTY LTD

Respondent

Application for special leave

to appeal

MASON CJ
BRENNAN J

DEANE J

Buyong

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 MAY 1990, AT 10.30 AM

Copyright in the High Court of Australia

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MR J. WATERS:  If Your Honours please, I appear for the

applicant. (instructed by Waters James & O'Neil)

MR T.J. RILEY, QC:  May it please Your Honours, I appear with

my learned friend, MR P.B. BRACHER, for the

respondent. (instructed by Molloy & Schrader)

MR WATERS:  Your Honours, I would see,k, firstly, to pass up

an outline of submissions and two cases that were

not referred to in the applicant's list of

authorities.

MASON CJ:	Thank you.
MR WATERS:	If Your Honours please, leave is sought for special

leave to appeal against a decision of the Full Court

of the Northern Territory Supreme Court, a decision

His Honour Mr Justice Gallop concurred in by the

Chief Justice of that Court, His Honour Mr Justice Rice.

The issue, we say, posed in that case and which

is of importance and also a matter, it would seem, of

controversy between the courts is whether or not the

"odd lot" principle as enunciated in CARDIFF CORPORATION

V HALL has effectivel.¥ been disposed of by the majority

decision in the case of J & H TIMBERS V NELSON,

a 1972 decision of this Court.

DEANE J:  But do you not face an initial problem in this case

though and that is that the magistrate did not decide
the matter on the onus of proof at all and the

Northern Territory Court of Appeal have held that his

findings were justified on the evidence and on matters

of which, in these type of proceedings, he was entitled

to take judicial note? Now, does that not mean that

however the matter goes, eventually it comes to the

question whether the magistrate's findings of fact

and his conclusions were justified on the evidence as

the Court of Appeal has held that they were?

MR WATERS:  Your Honour, the magistrate made a whole series of findings which we do not quarrel with and established

that, in fact, this man was partially disabled.	He
found that there was work that he could do but he

did not at any stage, although it was a matter addressed

to him, seek to identify the responsibility of showing,

as CARDIFF CORPORATION V HALL requires, that there

is an employer willing to accept the worker into some

form of employment. We say the only way one can look

at the conjunction of findings of disability that the

magistrate made was that at the end of the day he

clearly was an "odd lot" decision and that is what

His Honour Mr Justice Angel - that is the view that

His Honour took.

It is quite clear from the evidence and not, of course, before this Court, that the employer did not and,

indeed, nobody did, bring any evidence to show that ,

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there was any employer willing to accept a worker with

this conjunction of disabilities into the workforce.

DEANE J: Well, does the case then come down to the proposition

that it is not sufficient under the CARDIFF CORPORATION V

HALL approach to show that special employment is available in the general sense, you must come along

with a specific identified employer?

MR WATERS:  The magistrate did not establish that either

in the general or in the - certainly not an employer.

I think that is clear. BAVCEVIC made that

clear - His Honour Chief Justice Dixon in that case.

But the magistrate did not establish that any employer

or an employer, even in some hypothetical instance,

would be willing to accept a worker with those disabilities into any form of employment. So,

certainly, we do not say that he has to say --~ell, that

would be a very simple way to do it, one would think,

to say, "Yes, I am an employer and I'm prepared to

take a man, given all these disabilities, and for

the limited period of time that he's able to do the

work and notwithstanding that he can't lift, or sit,

or stand" and so on. But the magistrate did not

make that determination even at large and we say

that His Honour Mr Justice Angel was quite right in

saying, well, he clearly was an "odd lot", no effort

having been made to determine that; no facts adduced

from the employer's case which would lead to that conclusion. He was an "odd lot" and he should be

treated as such.

In those circumstances, the onus must transmit

to the employer and having done so, it was not

discharged.

Although Your Honours will note His Honour

Mr Justice Gallop did pick up some remarks at the

conclusion of his address concerning the state of

the evidence, he did not say - and we say it is not

open for him to say - that His Honour Mr Justice Angel

was wrong in identifying the absence of the discharge

of that onus of proof. Merely to say that there was

evidence at large which he might have given some

exercise of his own function might have been useful,

does not properly discharge the employer's onus.

MASON CJ:  But can you point to the principle in CARDIFF's case

being applied outside the circumstances mentioned at

the top of page 54, being Mr Justice Gallop's judgment,

where he says it is confined to a situation in which -

the court is dealing with an application

made by an employer to review the amount

of weekly payments payable under the

existing award or a prevailing agreement.

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MR WATERS:	Your Honour, yes, indeed.	I have listed a number

of them on page 2 of the outline of argument. The

most telling, we would say, is ANDERSON & AUSTRALIAN

POSTAL COMMISSION. His Honour Mr Justice Morling's - - -

MASON CJ: This is the one you have handed up at the back - - -?

MR WATERS:  Indeed, I have, Your Honour.

MASON CJ: Yes.

MR WATERS:  But I can say, looking down - that all of those

cases, the seven that I have mentioned, that was the

situation. We say there is a fair and complete

contradiction between accepting the general assertion

as to the applicability of J & H TIMBERS, as

His Honour Mr Justice Gallop has done, and in accepting

the interpretation which His Honour Mr Justice Morling

has taken in ANDERSON's case. We submit that it is

true in relation to some of the others that they did
not specifically advert to J & H TIMBERS although

in this case His Honour clearly did and that can be

seen at page 98 point 20 of that decision.	He
clearly identified there its applicability.

We say, Your Honours, that although there is a

wider problem which we say the Court should look to,

in this instance the worker was seeking to establish

total incapacity but he was successful in obtaining

partial incapacity so J & H TIMBERS - we say

that test has been fully complied with and, indeed, so

it was in this case. His Honour was not in any way

constrained to adopt BAVCEVIC, and that can be seen at

page 100, and to say that if the connnon law - so if

the "odd lot" provisions arise notwithstanding partial

disability, then it does fall to the court to carry over

and discuss the "odd lot" principles.

MASON CJ:  Mr Waters, can I take you to page 100 of the judgment

in ANDERSON's case where, at the foot of the page, there

is a passage cited from the judgment of Chief Justice
Dixon and Justice Kitto in BAVCEVIC's case.	Now; does

not that passage suggest that you would have difficulty

in establishing,on the facts,that the applicant is an

"odd lot" within the category that is described there?

MR WATERS: Well, Your Honour, we would have to take you to the

facts to - but we would say, no. It is, we would say,

an employment of an unusual kind which the employer

would have to establish. The difficulty we have, in a

sense, is that the magistrate did not even identify in

his judgment a particular employment that he felt

was appropriate. He did, after skipping through

a number that had been suggested to him, suggest at one stage, well, the only one that might be open to him was that of a taxi driver but then detailed a

series of disabilities: the man was a 51-year-old

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labourer of Malay extraction who could not do any more

than limited hours in any week; that had limitations

on lifting and bending and so on and so forth.

l1ASON CJ:  But as you yourself concede, the question whether

a worker is an "odd lot" is a question of fact and,

of course, that is emphasized at the conclusion of

Mr Justice Morling's judgment in the very case on

which you rely, ANDERSON's case, at page 102.

MR WATERS:  Yes, it is, but the question of whether or not

he applied the onus is a question of law and we say

it is clear that the magistrate did not apply the onus

to the facts. We make no quarrel with his findings

of fact either to this Court or in any court prior to

that, we accept the findings that he has made but

we simply say, having found that - - -

l1ASON CJ:  But the trouble is that you did not get a finding

that he was an "odd lot" which seems, as it were, the

initial platform of the argument that you want to

erect.

MR WATERS:  But he did not, the magistrate, say, "This man is

an 'odd lot'".	He did not advert to or discount
it.	He did not make any finding that they were not.

But what His Honour Mr Justice Angel found is that on the facts that he found, that could only be the

conclusion that he had come to. That is the only

way in which one could assess those conjunction of

disabilities in those circumstances and find that he

was - it was not a job - the characteristics that I

have briefly outlined to you, did not identify a

form of employment. It meant that for limited periods
from time to time, for some hours a day, when certain

characteristics of the job are not present: the

ability to lift bags in and out and so on, this man

could do something but that is not a job.

BRENNAN J: Is not the problem this, that the word "odd lot"

is a very useful word but what it really comes to

is that when you have got a person who is so badly

injured, that looking at him overall, you would say,

a job", then it is necessary for the employer to say,	"Well, goodness, I don't know whether he'll ever get	"We can show you how he can get a job" but that does
not really relieve the workman from the initial onus
of saying, "Well, look, I'm really so bad that looking
at me overall you'd say 'I don't know whether he'll
ever get a job' because the magistrate here found
I could get a job - 20 per cent."

MR WATERS: Well, with respect, we say the magistrate - that

it would be rather charitable to suggest that he

made such a finding. He assessed, sort of at large the 20 per cent or whatever that means - and this is

always a vexed question - and did not relate that

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notion of capacity to any particular form of

employment at all.

BRENNAN J:  I can understand the difficulty you have with

accepting the proposition but it seems to me that

the difficulty comes down to the facts of the

particular case. It depends on whether that initial

onus has been discharged that brings him into the

"odd lot" category.

MR WATERS: Well, if Your Honour please, if it is as

Your Honour has stated, it could almost be never

a case where the employer would be called upon to

bring the matter into play because, Your Honour, what Mr Lauritsen, the magistrate, found did not amount to

a form of employment, a capacity for work, at all.

He made a series of findings concerning abilities.

He made a finding which said "20 per cent". He did

not, as Your Honour has suggested to me, make a

finding that he had a capacity for a job - for a

form of employment. That is the key to the answer

to Your Honour's point. If there was such a finding

that this related to a form of employment, then

we have not got there but he made no such finding.

He simply then made those findings at large;then

looked at various sorts of employment that he

thought might apply; did not make a finding that
this man could specifically do any of them - and it

must be an employment, we say - and then fixed upon

a figure and we say it is precisely where Your Honour

left it. That what he has said, even if it was

inelegantly placed, must leave Your Honours with a

clear conclusion that he was talking about some form

to do on an ..... bas is some tasks which he certainly	of job - a job - not simply a capacity
did advert to. He did not advert to any job and
that is why we say His Honour Mr Justice Angel was
right in saying that had there been a finding that
there was a job, then there would be no need to bring into play the obligation of the employer to bring
forward a special job which CARDIFF requires him to do.

BRENNAN J:  Can I put this to you, that the problem really is

one not of an ultimate onus but of an evidential

onus and whether there is an evidential onus or not

necessarily, in each case, depends upon the facts of

that case.

MR WATERS:  But the evidentiary onus in this instance shifts,

Your Honour.

BRENNAN J: Well, that may be so but I am putting it to you as

a general proposition of law and I will caution you, of

course, against accepting it because if so, it may be

that all of these cases necessarily are not cases fit

for special leave because they turn on their facts.

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MR WATERS: Well, Your Honour, of course, I cannot accept

that. There has to be a series of findings, not an at

large assessment of the evidentiary issues and then
a finding at the end. There has to be a series of
findings. It is not easy to define in this instance

but there has to be a finding that this man is capable

of employment. If he is, we are out the door. If

there is not, then His Honour has to say, "These

are the conjunction of disabilities that this man

has got. Here is a mish-mash of abilities and

capacities that he has represented and that I have

found in his case. Now, it is for you to show me" -

to the employers - "a set of - an employment, even

if it is part-time employment, a job which would

fit" and he simply did not do that.	He made no formal
findings.	He made none, even by implication, we say,

and that His Honour Mr Justice Angel was right to pick

him up on that. And having got to that, we then say,

of course, that J & H just does not purport to preclude
the operation of CARDIFF.

If Your Honours please, if we are right in that, then the case can be resolved on two bases; either the

simple assertion that CARDIFF still survives as it

would appear to have done in the eyes of those

authorities that I have listed or, Your Honours, we

say, could look to the gross impracticalities which

J & H has posed to litigants in this field and this is a matter which causes problems.

Where, as in J & H, the worker was seeking a

finding of partial incapacity he, of course, has the

obligation to prove it. He who asserts must prove.

If he was seeking total incapacity, similarly so.

The dilemma that the lower courts have found and the

authorities and, in particular, the textbook writers

have picked up, is the situation where the employee

is seeking total incapacity and he is not successful

in getting that. Does the onus in those situations

fall upon him to simultaneously establish a partial

incapacity because it creates considerable difficulties for a worker seeking to contend for total	disability but then to say, "Well, if I am not	successful in convincing you that I am totally
incapacitated then here are a whole series of
things that I can do and here are jobs which I can
do which would satisfy the test of partial incapacity."
And the dilemma which has been posed by the - not
J & H which is a sound interpretation on its facts
but that in subsequent cases where the employee has
been seeking total incapacity, has been unsuccessful
then, of course, he leaves the court with no facts or evidence or an evidentiary basis on which to make a determination of partial incapacity. We would be submitting that this is a matter which urgently needs
clarification.

We say that His Honour Chief Justice Barwick

was right in J & Hin confirming the lack of practicality

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in the approach of the majority. We say that -

and His Honour Mr Justice Winde~er agreed, and that

the dilemma is best stated as he has done and also

as one of the textwriters, Mr Mills, whose authority

we have given, that the persons best able to put before

the court evidence of employment and evidence of specific

employment which might touch upon a person's disabilities,

is the employer.

BRENNAN J:  But does it not all come down to this, that

the employee ..... his onus by showing either that

he is totally incapacitated or that he is an "job lot"?

MR WATERS:  Yes, he can do that but say, for example, he

establishes that he is a partial incapacity. I am

sorry: he can establish that he is totally incapacitated;

he can establish he is an "odd lot" and as a result of

that he is totally incapacitated as Your Honour has

said but, at the same time, he might have to prove

that he is partially incapacitated and also, perhaps,

partially incapacitated because of the "job lot"

characteristics of his employment. It is a difficult,

almost impossible onus to discharge and the authorities

which I have listed demonstrate that dilemma and the

agonies which the court have had to come to terms

with it. It ·	... ,as addressed in a round-about way
in this Court in the case of MURATORE.	The problem was

posed in the case of LEIGHTON V BARBARO CONTRACTORS in

the Full Court and it has been clearly, we say,

identified in the textbook writers comment, the

textbook writer being Mr Mills in his discussion on

the matter.

If Your Honours are troubled about the evidentiary

basis, and it is really the matter which we first

discussed, I could only really go back to Mr Lauritsen's

findings and try to draw from those findings the findings

of disability that he made and to simply assert that they

did not amount to any finding of employment. And, of
course, we are here seeking to establish total
incapacity - difficult for a worker to prove employment

when, of course, he is asserting in the same application

that he is not fit for any which is the real dilerrnna

which J & H TIMBERS has posed over the years - not

difficult where there is a simple application for

total incapacity and you rise or fall; not difficult

where the worker seeks partial incapacity but where

he seeks total incapacity it creates impossible

burdens of proof. To apply, as Mr Justice Morling

did in ANDERSON's case, the "odd lot" principles -

and Your Honours might think that he applied them,

although carefully following BAVCEVIC's case, quite

liberally - he was doing that to overcome the impossible

dilerrnna posed to a litigant who has to seek to establish

both total and partial incapacity in the same breath.

Perhaps, just to touch upon the actual statements

of each of those; His Honour the Chief Justice and

Mr Mills: the Chief Justice His Honour Mr Justice Barwick

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approved BRYER's case. We do not defend BRYER's

case because that does, of course, assert a much

larger onus upon the employers from the outset.	We
do not see that as appropriate.	He says that it is

but what he says at page 635 is equally appropriate:

When it comes to a claim for compensation

the employer is in reality and of
necessity an insurance company with vast
resources of information and of investigatory
capacity: and as,I have pointed out the

employer has the ability to offer suitable

employment -

we do not say he has an obligation to -

thus obviating the need for payment of

compensation whilst ever the worker is

able to perform the proffered work.

His Honour Mr Justice Windeyer approved those statements and Professor Mills, at page 299, of his book, his

1959 book points up the unsatisfactory nature of the

majority decision and says - and really adopts what

the Chief Justice has said:

The employer, who is in reality an

insurance company with vast resources
of information and for investigation,
is well-fitted to supply evidence of

the value of the work of the incapacitated

worker.

And, Your Honours, that wider question, we say, is

appropriate to dispose of in these proceedings. That

would leave the test of J & H TIMBERS in tact

except in circumstances where there was a dual

obligation cast upon a worker, a dual obligation

to prove total incapacity which he must prove but

in circumstances where he, as his sort of second-string

argument, proves partial incapacity, the thrust of

our submission would have that capacity placed upon

That is a wider issue. It is not necessary to	"employerfl who is the one best able to deal with it.
determine the matter finally upon that basis.

MASON CJ:  The Court need not trouble you, Mr Riley.

The applicant contends that the question of onus

which warrants the grant of special leave.

in relation to proof of partial incapacity in the
context of section 7A of the WORKERS' COMPENSATION

In this case, however, the magistrate's findings of partial incapacity did not rest on onus nor does

it clearly appear that the findings were appropriate

to bring the case within the principle of CARDIFF

CORPORATION V HALL, (1911) 1 KB 1009. The case is

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therefore not appropriate for the grant of special

leave. The application is refused.

MR RILEY:	I seek an order for costs, Your Honour?
MASON CJ:	Yes.  You do not oppose that, Mr Waters?

MR WATERS: It is not opposed, Your Honour.

MASON CJ:  The application is refused with costs.

AT 11.00 AM THE MATTER WAS ADJOURNED SINE DIE

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