Byrnes v Groote Eylandt Mining Company Pty Limited

[1990] HCATrans 109

_i~

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S27 of 1990

B e t w e e n -

REX FREDERICK BYRNES

Applicant

and

GROOTE EYLANDT MINING COMPANY

PTY LIMITED

Respondent

Application for special leave

to appeal

MASON CJ
BRENNAN J
DEANE J
GAUDRON J

McHUGH J

Byrnes

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 MAY 1990, AT 9.34 AM

Copyright in the High Court of Australia

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MR D.F. JACKSON, QC:  May it please the Court, I appear

with my learned friend, MR J.S. HILTON, for the

applicant. (instructed by Lasky & Adelstein)

MR M. NEIL, QC:  If it please the Court, I appear with my

learned friend, MR R. BELL, for the respondent.

(instructed by Molloy & Schrader)

MASON CJ: Yes, Mr Jackson?

MR JACKSON:  Your Honours, the issue which arises in this

case is whether in jurisdictions in Australia

other than the Northern Territory, the limitations

of actions provision of section 23(3A) of the

WORKMEN'S COMPENSATION ACT of that Territory

applied to bar actions which were commenced after
the period of three years contemplated by that

provision.

Your Honours, that is an issue which, it is

submitted, is of general importance, arises

directly in the proceedings and is an issue on

which a view contrary to that adopted by the

majority in the Court of Appeal is clearly open.

MASON CJ: But let us assume for the purpose of the argument

that it is an important question. The question

then is whether it is sufficiently arguable to

justify the grant of special leave, that is,

whether Mr Justice Hope's view of the matter is

attended with sufficient doubt.

MR JACKSON:  Your Honour, essentially, one comes in that case

to the terms of section 23(3A) which Your Honours

will find set out at page 62 of the record and

the essence of the view taken by the majority,

Your Honours, appears to have been this, that

if one looks at the combination of subsections

(3) and (3A), that what was done by subsection (3)

was itself to create or preserve, perhaps, a

liability and that it was made subject to the

particular condition, the particular condition

within three years and if they were not commenced	being that the proceedings had to be commenced
within that period, that was the end of the right as well as the end of any remedy.

Now, Your Honours, what we would submit in

relation to that is that it is correct to say

that in some circumstances it is appropriate, by

looking at the terms of the particular statute,

to take the view that in fact the expiration

of the time has the effect that the remedy itself

has gone completely and the right is barred.	What
we would submit, however, is that if one looks
at - - -

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BRENNAN J:  You mean the right has gone completely and the

remedy is barred?

MR JACKSON:  I am sorry, Your Honour, I put it badly, yes.

Your Honour, what we would submit in relation to

section 23(3) is that section 23(3) recognizes

what it describes as a legal liability in the

employer to pay damages in respect thereof, that is,

a legal liability to pay damages in respect of

the personal injury to which it refers and that

recognizes the underlying concept, we would submit,

of there being such a liability, a liability

arising under the general law because it would

not appear to arise anywhere else.

Now, Your Honours, if one looks then at

section 23(3A), what section 23(3A) does is to
speak, first of all, in terms of the entitlement

to sue. It speaks of an entitlement to take

proceedings under subsection (3), that is,
proceedings against the employer to recover

damages and it speaks of a particular time. Now,

Your Honours, so far as subsection (3A) is concerned,

it is a provision, we would submit, which is speaking of

an entitlement to institute proceedings. It is

something which, in its language, is procedural.

Your Honours, we would submit that it is

difficult, with respect, to see any real difference

in effect between a provision of that nature

and a provision such as that which appears in

what, in a sense, is the leading case on the point.

That is PEDERSEN V YOUNG, (1964) 110 CLR 162

where the relevant provision was a provision
which is set out at the bottom of the first page
of the report and Your Honours will see that the
relevant provision there was a provision which

said:

where damages claimed by the plaintiff

for the negligence ... consist of or include

damages in respect of personal injury to

any person -

shall be commenced within three years after

the cause of such actions arose, but not

after".

then the action -

Now, Your Honours, that is clearly a provision, one

would think, which is a provision speaking of the

time at which action should be instituted. We

would submit that no significant difference, in

effect, may be seen between that provision and the

provision in the present case.

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Your Honours, could I also submit this,

that if it be that there is some such distinction

which has been drawn and which would apply in

the present case to prevent the plaintiff from

succeeding then, we would submit, the question

whether there is such a distinction, that is, a

valid distinction between provisions of that

kind and provisions such as that in PEDERSEN V YOUNG,

is itself a question which the Court should entertain.

MASON CJ:  But here, of course, section 23(3) confers a

statutory right, does it not?

MR JACKSON:  Your Honour, it recognizes an entitlement, and

I suppose in that sense it confers a statutory

right. Your Honour, the quibble, if I may put it

that way, between what I put and what Your Honour has

put to me, is that when one speaks of the right in

section 23(3) what it is is the, in effect,

continuation of a right to claim damages in respect

of a legal liability and the legal liability,

Your Honour, is one that does not arise from the

Act but arises dehors the Act, that is, it is a

legal liability under the general law.

McHUGH J:  But even so, read as a whole, does not section 23

regulate the cormnon law right?

MR JACKSON: Well, Your Honour, it regulates it if one is

question, of course, is whether it regulates the

speaking about the situation which obtains in the Northern

right in so far as proceedings which occur elsewhere.

And, Your Honour, the answer that I gave to Your Honour

is one that would obtain, one would think, in respect

of any limitation period.

BRENNAN J: But it regulates it only in a sense, I take it on

your argument, in the way indicated in subsection (3A)?

MR JACKSON:  Yes, Your Honour. Your Honour, I do not know

that I can advance the argument beyond that so far

as the present proceedings are concerned.

M..ASON CJ: Yes, thank you, Mr Jackson. Yes, Mr Neil?

MR NEIL:  May it please the Court. Your Honours, section 23

in its whole form is set out at page 16 of the

application book which includes subsection (2).

It is our submission that this is a particular

section that the Court of Appeal has construed as

falling on one side of the line and there is not a

matter of general importance. However, as

Mr Justice Hope points out, time limits imposed by

ordinary limitation statutes are generally regarded as
matters of procedural and not substantive law, but it

is well established that statutory provisions fixing

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times within which proceedings must be taken are not

necessarily procedural only. They may be part of

the substantive law. This section, Your Honours, must be read as a whole and when one sees it as a

whole, as Mr Justice Kirby said, it extinguishes

the corrrrnon law rights. As Mr Justice Hope said,

it destroys the corrrrnon law rights. What it then

does is establish a scheme of entitlement based upon

three things: one, the appearance of legal liability

and, two, the actual receipt of compensation. Once

that is done then contingent upon bringing an action
within three years, the workman may have damages.

It is not a case of the procedural type of

section that is usually found and which has been
held in the ordinary course to be procedural. This
section is a scheme. It destroys the corrrrnon law
rights. It then provides, "You must have two things

happen before you can bring an action" and as

Mr Justice Hope explains, contingently you must do

that within a certain period. The applicant seeks

to take subsection (3) out of the section, in effect,

and mount an argument based on that. In our

submission, the Court of Appeal was clearly correct

in determining that the section as a whole provides

a statutory scheme, is a substantive matter, it

regulates the rights and the relationship of the

parties in a clear fashion.

BRENNAN J:  Can we just take it step by step then, Mr Neil.

MR NEIL: Yes, Your Honour.

BRENNAN J:  When circumstances do appear that create a legal

liability in the employer to pay damages, now, that ~-would

be by reason, I take it, of the ordinary corrrrnon law

of negligence?

MR NEIL:	We would rather submit not, Your Honour, but it could
be. For the purposes of our argument, I can accept
that.  We would - - -
BRENNAN J: Well now, if there is a corrrrnon law right to take

action by way of damages for negligence arising,

what in this provision extinguishes it?

MR NEIL:	Your Honour, in our submission, the first section says
you may not - subsection (1) says there may not be
liability -

both independently of and also under this

Ordinance -

except pursuant to the scheme. So, in our submission,

what the section does is to start again. It simply

extinguishes or destroys the corrrrnon law rights.

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BRENNAN J:  But that is to eliminate the exception and the

exception is the very thing that preserves, is it

not?

MR NEIL: Well, Your Honour, our submission is the exception

is not solely based on one aspect, you must have

the two aspects.

BRENNAN J:  I will put it another way because it is just

a general proposition of the effect on a right that

is important here, it seems to me. In a case that

falls within the exception, subsection (1) has

nothing to say.

MR NEIL: That is so, Your Honour.

BRENNAN J: So, the question simply is does the case fall

within the exception?

MR NEIL:	Yes, Your Honour, but one has to construe the exception
in light of the whole section.
BRENNAN J:	Of course. But construing it in the light of the

whole section, it one finds that there is a liability

which comes within subsection (3) and is instituted

within the time in (3A), the cause of action owes
nothing to this provision at all. It is an ordinary

action for negligence.

MR NEIL:	Your Honour, we would submit not because the word
'appears'to create a legal liability is the. word that acknowledges, in effect, no legal liability
but if circumstances arise that would otherwise appear to create a legal liability and
if the workman receives compensation, if those
two events occur, then he is statutorily
entitled under the scheme, contingent upon bringing his claim within the right period of time, to obtain
damages.  The word "appear", we would submit, was
put in for that very purpose.  The intention of
the section had been to eliminate cormnon law rights.
It does not revive them as such.  What it says is,
where you have the appearance of your old cormnon law
rights through a set of circumstances, plus the
workman has received his payments, then and only
then, contingently so upon the time, may he bring
his action.
McHUGH J:	Do you get any assistance from the words under

subsection (3A)? It seems to indicate it is the

statutory right.

MR NEIL: Yes, Your Honour, it is the statutory right. It is

not a cormnon law right. It does not revive a cormnon

law right; there has been extinction; it is a statutory scheme, and that is what (3A) is then referring to. Subsection (2) is not irrelevant either

because in certain circumstances you may not even have

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compensation under the ordinance if there are some

other pension rights available. So, it is a

section that starts again, provides a particular

code of statutory rights based upon the words of

the section, appearance of legal liability and

payment.

McHUGH J: Well, the words, "appear to create a legal

liability" would cover the case of a breach of

statutory duty as well. Is that - - -?

MR NEIL: Well, they may well, Your Honour, but again it is

not reviving - it is not saying that you have

revived some statutory duty at connnon law. It is

saying there is an appearance of it. That is how

you get into the section: appearance and payment,

and Mr Justice Hope and Mr Justice Kirby came to

the same basic conclusion. Mr Justice Mahoney

affirmed and lent himself, after some doubt, to

a unanimous decision - resolved•his doubt, and,

in our respectful submission, the point is clear.

This particular section does not have similarities

throughout the country. It is a particular section

that has been construed by the Court of Appeal

as falling within the substantive side of the line.

It is not, in our respectful submission, a matter that raises an issue in the way that my learned

friend submits, of national importance. If it

please the Court.

MASON CJ:  Thank you, Mr Neil. Mr Jackson?

MR JACKSON:  Your Honours, may I say just these things: first,

the fineness of analysis required to say that this

is a case to which PEDERSEN V YOUNG, for example,

does not apply ---there is a difference between that

and this case - indicates, in our submission, that

perhaps the question which the Court should reconsider is the question of the application of PEDERSEN V YOUNG and whether there is, in fact, some distinction

between procedural and substantive provisions in this

area.

Your Honours, the second matter is this: that

if what Your Honour Justice McHugh put to my learned

friend about gaining some assistance from the

expression, "shall be entitled to take proceedings

under subsection (3)" is correct, then one would

think that one consequence of that might be that

proceedings could only be taken in the Northern

Territory.

The third thing, Your Honours, is the expression,

"appear to create a legal liability" in subsection (3)

is not, in our submission, something which is intended

itself to have a particular independent operation

because it would seem curious if one's right of action

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depended on whether there was an appearance of

creating a legal liability as distinct from one

proven in the end.	Your Honours, those are our
submissions.

MASON CJ:  Thank you, Mr Jackson. The Court will take a

short adjournment in order to consider the course

it will take in this matter.

AT 9.51 AM SHORT ADJOURNMENT

UPON RESUMING AT 9.57 AM:

MASON CJ:	A majority of the Court consisting of four Justices is of opinion that the decision of the Court of Appeal
is not attended with sufficient doubt to justify the
grant of special leave to appeal.  The application for
special leave is therefore refused.
MR NEIL:	I ask for costs, Your Honour.
MASON CJ:	Mr Jackson, you do not oppose the application?
MR JACKSON:	No, Your Honour.
MASON CJ:	The application is refused with costs.

AT 9.58 AM THE MATTER WAS ADJOURNED SINE DIE

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