Carlton & United Breweries & Anor v Hegedis

[2003] HCATrans 571

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M79 of 2002

B e t w e e n -

CARLTON & UNITED BREWERIES and VICTORIAN WORKCOVER AUTHORITY

Applicants

and

MARIO HEGEDIS

Respondent

Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 FEBRUARY 2003, AT 11.47 AM

Copyright in the High Court of Australia

MR R.P. GORTON, QC:   If the Court pleases, I appear with my learned friend, MR P.H. SOLOMON, for the applicants.  (instructed by Mills Oakley)

MR M. O’LOGHLEN, QC:   If the Court pleases, I appear with my learned friend, MR P.M.E. WISCHUSEN, for the respondent.  (instructed by Slater & Gordon)

HAYNE J:   Yes, Mr Gorton.

MR GORTON:   If the Court pleases, this application is in respect of an interpretation by a single judge of the Supreme Court of Victoria, adopted in full by the Court of Appeal, which judgment, contrary to all accepted principles of statutory interpretation, failed to give any real effect to amended words of an accepted plain meaning added to the main entitlement provision of the Accident Compensation Act 1985 (Vic), section 85 of that Act.

We say that the words have plain meaning and that was accepted by the court, by both courts, by reason of the matters stated in paragraph 37 of Justice Ashley’s judgment on page 24 of the application book where, apart from the use of the word “superficially”, it seems to be accepted that the words do have a plain, easily comprehended and understood meaning and application.  That concept is repeated on page 26 in paragraph 46 of the judgment.

HAYNE J:   But the difficulty you have in this application is, is it not, that you point to no analogous provision in other legislation?

MR GORTON:   There are no provisions of precisely the same wording in other legislation.  There are analogous provisions or effects sought to be achieved in various different ways in all the States of Australia.

HAYNE J:   But if we took it we would, in effect, be doing no more than reviewing a question of construction of the particular provision of this Act?

MR GORTON:   That is correct.

HAYNE J:   Why should we take it in face of the unanimous view of the Supreme Court if the view for which you contend is sought to be achieved, it can be achieved by legislative amendment of an Act so frequently amended, as is this?

MR GORTON:   It should be taken, for one reason we would submit, on the basis that I have heard uttered by Justice Callinan on some occasion at least that this Court is the superior court of the State of Victoria and the fact that it is also the superior court of the Commonwealth and the other States does not mean that it should ignore decisions made in the State of Victoria which are, in our submission, clearly wrong in their application whether they are unanimous or otherwise.

Secondly, the legislation itself, even though it is and has been amended frequently, this was an important amendment made now 10 years or so ago and has application, subject to any retrospectivity of an amendment that might subsequently be made, to very, very many claims, many of which are unresolved at this stage, where the rights will be different if our interpretation is adopted than would be if it is not.

HAYNE J:   If it is thought that the legislative purpose has misfired, is there any reason why Parliament could not correct it?

MR GORTON:   I cannot advance a reason why Parliament cannot do something but, with great respect, the question is a touch unfair.

HAYNE J:   That is the whole purpose of these proceedings, Mr Gorton, as you well know.

MR GORTON:   I cannot say either that Parliament will do it.

HAYNE J:   No.

MR GORTON:   And unless it is done then the clear import of the legislation is not achieved.  I cannot put it any higher than that.  We say it is an important matter and we say the decision is clearly wrong, having regard to the fact that the words do have an obvious application if they are accepted and applied with their face value, and that the reasoning process adopted by Justice Ashley and adopted by the Court of Appeal without any alteration is clearly flawed on analysis and is a reasoning process which differs from that adopted and applied.  This is not an absolute statement but it differs from the approach taken to similar wording provisions in New South Wales in the case of Mercer.

HAYNE J:   It comes to this, does it not, that you say they are wrong and you say that, by the application of well‑known and accepted principles, error could be demonstrated?

MR GORTON:   Yes, your Honour.

HAYNE J:   That is the nub of the point, is it not?

MR GORTON:   Yes, when an error can be demonstrated is the nub of the point, but the accepted principle in substance is plain words are given their meaning unless there is some overwhelming other principle that prevents them being given that meaning.

The matter of the case of Hill that was referred to was one where the words were looked at differently because they would have offended against the principle of retrospectivity.  The other case was that it would have offended against the principle that people are not imprisoned.

What has happened here is that whole approach has moved sideways and the judge, and the Court of Appeal following him, has adopted, by a faulty reasoning process, an approach that says there might have been some other purpose, there might have been some other way of looking at it and so it ought to be looked at in another way.  But what is really important in getting to that state is the reasoning process that was adopted to say we will not give these words the meaning which at first sight they have.

HAYNE J:   Do you accept that the fulcrum about which Justice Ashley’s reasons turns appears at paragraph 55, page 29 of the application book, where his Honour expresses the view that:

at best for the respondents, consideration of s.82(1) in context leaves its true construction uncertain.

Having reached that view his Honour then goes on.

MR GORTON:   Yes, and he reaches that view in paragraph 55 by reason of the matters set out in paragraphs 46 through to 53, and if you look at those matters that led into that view, none of them sustain that ambiguity or uncertainty that he came to.  If your Honour starts at pages 26 and 27 you find that you are dealing with paragraphs 46 and 47 and the substance of that is they put the word “significant” into the disease provisions of the definition and that is terribly important, that must mean that that was all they were intending to do.

There is a perfectly good other explanation for those words being put in the disease provisions.  If the intention was to achieve what the plain meaning of 82(1) words are and you did not put “significant” into the definition of “disease” in paragraphs (b) and (c) of that definition, one could easily see a conflict being said to exist between an injury having to achieve one standard to be an injury and another standard later on.  It avoids conflict to put the word “significant” in there.  The putting of the word in there is not a basis for saying you should read down the words later on.

Paragraph 48 at page 27, his Honour and the Court of Appeal, in effect, said it is a strange place to put into the Act a provision which is going to limit the entitlement of a worker to compensation in the entitlement section of the Act.  That is an odd place to put the entitlement limitation, you would expect of find it in the definition of “injury”.  It is just a proposition which, if you accept that section 82 is the principle entitlement provision of the legislation, that is where you would expect to find a statement saying that you have to have a degree of causation established before you get the entitlement, not in a definition section.

He said at paragraph 50, and earlier on in paragraph 19 he has dealt with section 5(1B) ‑ its presence as somehow pointing to the non‑application of the words in section 82 ‑ section 5(1B) as amended is recognised as not being exhaustive of all considerations that should be taken into account in working out what is a “significant contributing factor”.

The factors, each of individual factors in it are not conclusive of the question of whether employment was a “significant contributing factor” to the injury, but each of the considerations set out in it are relevant to whether there is an injury, and some at least are clearly relevant to whether employment is a “significant contributing factor” to an externally caused traumatic, “blood on the floor” injury, in the primary sense, and all of them are applicable to a consideration of whether the injury in the primary sense, which is either the Zickar or the McIntosh or the Petkoska‑type injury, that is, the sudden physiological change, the internal injury, happening in the face of a disease process where it has been held that that sudden internal change can constitute injury in the primary sense without calling on the extended definition.

An examination of whether employment is a “significant contributing factor” to that sort of sudden change is clearly an examination that will involve the factors of section 5(1B), so that you cannot draw a conclusion from the presence of section 5(1B) that there is an intention only to require a causation degree in relation to disease injuries.

In Mercer in the Court of Appeal in New South Wales there was the equivalent provision to section 5(1B).  It was not in any way seen to be an argument saying that the amendment there did not apply to ordinary injuries as well as disease injuries.  In paragraph 51 of the judgment his Honour said that there is not really any use in keeping the “disjunctive course of employment qualification” in the section if you put in the words in section 82(1), “significant contributing factor”, but that is contrary to the law, in our submission, in Victoria, and contrary to the law in New South Wales which was adopted relying in part on the description of what was meant by a “significant contributing factor” by Justice Ashley.

If you just remove the disjunctive from section 82 so that it became “an injury had to arise out of”, and in the alternative you changed it from disjunctive to conjunctive, you would reach a result that was undesirable in that every injury then would have to not only arise out of employment, but also in the course of employment.  You would narrow the range of injuries which could be given entitlement to compensation where they arose out of employment unless they actually arose with a temporal relationship to work.

His Honour might not have been saying that.  He might have been saying we just make it “injuries arising out of employment” is another way to achieve this end, but that is not right and it is not right because there is a different degree, a greater degree, of causation required for an injury to be classified as “arising out of employment” than is required for an injury to arise where employment is a “significant contributing factor”.  That question was considered in relation in New South Wales to the words “substantial contributing factor” and held by the Court of Appeal there in Mercer that a “substantial contributing factor” was a lesser test than “arising out of employment”.

In arriving at that conclusion the Court of Appeal in New South Wales paid particular reference to what Justice Ashley said in Popovski in Victoria.  What Justice Ashley said in Popovski in Victoria is set out in the judgment in Mercer.  I do not know whether it is of advantage to refer to that in particular and I do not want to waste any time referring to that in particular, but in Popovski in Victoria the whole emphasis by the court was there is a difference between “arising out of employment” causation and “significant contributing factor” causation.

Assuming that is right and that has not been challenged and is sort of acknowledged in passing with a whole different emphasis in paragraph 51, then there is a reason for keeping the disjunctive.  What you do is you get “arising out of employment” and you get “injuries in the course of employment” which can satisfy the entitlement to compensability with a lesser causation test.  There is little to be said about paragraph 52.

HAYNE J:   Again, accepting there are criticisms you would wish to mount to the reasoning, why should we take it?

MR GORTON:   Because it is a very important piece of legislation in the State of Victoria.  It is going to apply to a number of actual “blood on the floor” injuries, including one like this and injuries like Mercer.  It is also going to apply to other injuries in Victoria which are frequently, being internal injuries, injuries which are of catastrophic effect to the people suffering them and of enormous impact upon the scheme that has been in place in Victoria for now some 10 years and in place for a further period of time until any amendment might be required.

This is very important Victorian legislation.  The injuries, some at least of the injuries - and I might say that Justice Ashley says, look, these McIntosh‑type injuries are very rare, now that might be something that was true for someone practising up until 1990 in the compensation field when McIntosh was decided, followed by Zickar, followed by Petkoska.  Since those decisions, and progressively since those decisions, this sort of claim has become much more frequently made and is of great significance in money terms and scheme terms when it is made.  So, we have an important piece of legislation affecting, importantly, many people with major injuries and that has been place for 10 years in the past and will not be cured by amendment.

HAYNE J:   Yes, thank you, Mr Gorton.  We need not trouble you, Mr O’Loghlen.

This application concerns the proper construction of a provision of workers compensation legislation, the Accident Compensation Act 1985 (Vic), which is not said to find any close analogy in similar legislation of other States. The Court of Appeal unanimously held that the primary judge’s construction of the section was correct. The applicable principles of construction not being the subject of any relevant dispute, no question of general principle would fall for decision were leave to be granted. The construction of the Accident Compensation Act adopted in the courts below being an available view of the operation of the relevant provision, neither the interests of justice in the particular case, nor more generally, warrant granting special leave to appeal.  Special leave is refused with costs.

AT 12.09 PM THE MATTER WAS CONCLUDED