Chugg v Pacific Dunlop Limited; Pacific Dunlop Limited v Chugg

[1989] HCATrans 237

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J6

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M20 of 1989

B e t w e e n -

PETER RICHARD CHUGG

and

PACIFIC DUNLOP LIMITED

Office of the Registry

Melbourne No M30 of 1989

B e t w e e n -

PACIFIC DUNLOP LIMITED

and

PETER RICHARD CHUGG

Chugg

Applications for special

leave to appeal

BRENNAN J
DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 OCTOBER 1989, AT 9.33 AM

Copyright in the High Court of Australia

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MR J.L. DWYER, QC: If the Court please, I appear with my

learned frien~ MR B.M. DENNIS, for the applicant,

Chugg, if the Court pleases. (instructed by A.F.A. Lindeman, Solicitor for Department of Labour)

MR E.W. GILLARD, QC: If it please the Court, I appear with

my learned frien~ MR T.C. MORRIS, for the

respondent and the applicant, Pacific Dunlop.

(instructed by Freehill Hollingdale & Page)

BRENNAN J: Thank you. Mr Dwyer.

MR DWYER: If the Court please - - -

BRENNAN J:  Mr Dwyer, I think perhaps if you would direct your

attention first to the application by Pacific Dunlop.

MR DWYER:  Yes. In relation to that matter what we say is

this, if the Court please:  we oppose the grant of

special leave. Pacific Dunlop obtained an order

nisi on two grounds: one, that the magistrate was

wrong infinding that the hopper was a dangerous

part of the plant of the work place or of the

work place itself; and secondly, that the magistrate

was wrong in finding that there was no guard provided

for the hopper so as to prevent, as far as

practicable, loss of life or bodily injury.

Now, there are two questions of law involved

in those matters. Our submission is that the law

as to what is a dangerous part of the plant of the

work place, so far as it applies to the facts of

this case, were settled by the High Court in

DUNLOP RUBBER AUSTRALIA V BUCKLEY which was applied

by the magistrate and which was applied, in turn, by

the majority of the Full Court. The other question,

as whether a guard was provided, really, in the end,

turned into a question of fact which was determined

by the magistrate against Pacific Dunlop. Our

submission is that the majority of the Full Court

were correct in finding that it was open to the

magistrate to find that the dangerous part was not

guarded.

BRENNAN J:  Mr Dwyer, are you familiar with the application

which was made for special leave - special leave was

granted - in DAIRY FARMERS COOPERATIVE V AZAR?

MR DWYER: Yes, I am aware of that,,Your Honour.

BRENNAN J: Does the same sort of problem arise here?

MR DWYER:  The DAIRY FARMERS case is the same problem as in

the Pacific Dunlop application.

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Chugg

BRENNAN J: Well then, should we not do something about that?

MR DWYER:  It is difficult for me to say that the Court should

not in those circumstances.

BRENNAN J: Well, there is only one question is there not and

that is whether or not the applicant, that is

Pacific Dunlop, desires this application to be stood

over until after the resolution of DAIRY FARMERS or
whether they would prefer to have special leave

granted and the two matters - that is, DAIRY FARMERS

and PACIFIC DUNLOP - heard substantially at the same

time?

MR DWYER Yes, Your Honour.

BRENNAN J:	Perhaps we will hear what Mr Gillard has to say.
MR DWYER:	There is nothing that I can say, really, in

opposition to that.

BRENNAN J: And in the case of CHUGG V PAC,IFIC DUNLOP, I take it you would rely upon the distinction between the view taken by the Full Court of the Supreme Court of

Victoria and that taken in KINGSHOTT's case?

MR DWYER:_ Yes.

BRENNAN J: Is there anything else you wish to add to that

application?

MR DWYER:  No .

BRENNAN J: Well, we will hear what Mr Gillard has to say.

MR GILLARD:  I was not aware of the DAIRY case but I am pleased

to hear it, Your Honour. Could we indicate that

we apply for special leave and that an order be made

that we have the matter heard at the same time so

that we can argue the same point.

BRENNAN J: Yes, that is a matter that will have to arranged

through the Registrar.

MR GILLARD:	Yes, if Your Honour please.
BRENNAN J:	Mr Gillard, in relation to the application by

Chugg against Pacific Dunlop, what do you have to say

about the grant of special leave in those matters?

MR GILLARD: Well, I had heard some other rumour, Your Honour,

that the High Court had already granted leave

with respect to that - to KINGSHOTT'scase - but

perhaps I have got my rumours all incorrect.

BRENNAN J: Certainly KINGSHOTT's case was discussed in the

course of the argument in relation to DAIRY FARMERS V

AZAR.

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Chugg

MR GILLARD: Well, Your Honours, we do oppose leave being

granted to the applicant in CHUGG V PACIFIC DUNLOP

and we do it simply on this basis: that the

judgment of the Full Court of Victoria is clearly

correct; it is a matter of construction of the

particular section concerned which is section 21(1)

and, we submit that without looking at any authority

at all on a plain meaning or understanding of

section 21(1), the Full Court was clearly correct.

The cases of KINGSHOTT and also the House of Lords

at NORRIS are just examples of courts construing	certain provisions which were somewhat different
to the one we are concerned about and that section 21(1), when construed, leads one to the conclusion that the
burden is upon the prosecution.

DAWSON J:  But there is an apparent difference of opinion and

the question is an important one, is it not?

MR GILLARD: That is correct, with respect, Your Honour.

There is a difference of opinion but both the

House of Lords and the Full Court of New South Wales

were construing particular provisions, indeed

the provisions in both those cases were very

similar - provisions in those cases were somewhat

different to the ones we are concerned about - and
both cases, really, just stand for an example of
the way the courts construe certain statutory

provisions.

TOOHEY J: Are they so different, Mr Gillard, that there is

no principle that can be distilled from either of

those that is applicable here?

MR GILLARD: In our respectful submission, that is so,

Your Honour. They are so different and it is just a matter of the courts weighing up various factors

which lead one to a certain conclusion. But if you

look at section 21(1), in our submission, it is

clear that the prosecution has the burden of proof

because it is the obligation which is on the

employer to provide a working environment and that

working environment is qualified by the words,

"so far as is practicable". So, therefore, if we

are charged with a breach, a failing to provide
that working environment, surely it is upon the

prosecution to establish that working environment

so qualified.

TOOHEY J: But that is just begging the very question that

has to be decided, is it not?

MR GILLARD:  In our submission -it may be so, Your Honour,

but, in our submission, the construction just leads

to that very answer. So, we say that it is not

demonstrated that there is an error of law so far

as the Full Court is concerned.

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Chugg

BRENNAN J:  The difficulty with our acceding to that proposition, it

seems to me, Mr Gillard, is that if we were to refuse

special leave on the ground that it is not attended with sufficient doubt, or clearly right, that would

be construed as a construction of the Victorian

statute distinguishing it from the New South Wales

statute that was considered in KINGSHOTT'scase.

The question of whether there is a distinction
between the two statutes of a material kind is, itself,

an important question of law.

MR GILLARD:  Yes, I respectfully agree with that, Your Honour.

So, I do not think we can add much more than what we have said, Your Honour.

BRENNAN J:  Yes, very well. We need not trouble you on that

point, Mr Dwyer.

In relation both to the application by

Peter Richard Chugg against Pacific Dunlop Limited

and the application by Pacific Dunlop Limited against

Peter Richard Chugg, there will be grants of special

leave to appeal. We would invite the parties to

maintain, as no doubt they will, some contact with
the Registrar to ensure that the listing of these

matters and the listing of the matter of

DAIRY FARMERS COOPERATIVE LIMITED V GEORGE AZAR

are so arranged as to be of convenience both to the

Court and the parties.

AT 9.46 AM THE MATTER WAS ADJOURNED SINE DIE

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Chugg