Dairy Farmers Co-operative Limited v Azar

[1989] HCATrans 211

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl8 of 1989

B e t w e e n -

DAIRY FARMERS CO-OPERATIVE LIMITED

Applicant

and

GEORGE AZAR

Respondent

Application for special leave to

appeal

MASON CJ TOOHEY J GAUDRON J

Dairy

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 SEPTEMBER 1989, AT 10.50 AM

Copyright in the High Court of Australia

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MR I.B. WARD, QC: If Your Honours please, I appear with my

learned friend, MR J.B. HARRINGTON, for the

applicant/defendant. (instructed by R.C. Blading & Co)

MR B.J. GROSS, QC:  May it please the Court, I appear with

MR P.J. DEAKIN for the respondent. (instructed by

P.K. Simpson & Co)

MASON CJ:  Mr Gross, it may be convenient and may shorten

the matter if we call on you in the first instance
to endeavour to persuade us that we should not

grant special leave.

MR GROSS:  Yes, Your Honours. The decision of the Court of

Appeal was on the facts correct and in accordance

with decided authority. The important point made

by MUMMERY V IRVINQ3is that what has to be found is

a dangerous part, as distinct from there being

dangerous machinery. The separate consideration in

MUMMERY V IRVINGS that the legislation is not intended

to protect against indirect injuries caused by
propulsion of objects from the machine did not arise
in the present case because the injury resulted from
the direct application of vertical force through the

bottle on to the plaintiff's hand. This occurred not

to a customer, as was the situation in MUMMERY V

IRVINGS, but to a worker actively involved in working

the machine and whose task involved, among other things,

removal of broken glass.

The injury occurred not some 12 to 14 yards from

the machine but at the point where the dangerous part operates in a vertical direction in the normal course of its working.

MASON CJ:  Mr Gross, are you aware that there are awaiting

hearing two special leave applications filed in

Victoria in cases, I think, both rejoicing in the

name of PACIFIC DUNLOP LIMITED V CHUGG? The names of

the parties may be reversed, I think, in the second

case. As I understand it, in those cases the Full

Court of Victoria - or the Court of Criminal Appeal of Victoria has elected to follow the dissenting

judgment of Mr Justice McHugh in DAIRY FARMERS

CO-OPERATIVE V AZAR in preference to the majority

judgment. Are you aware of that?

MR GROSS:  No, Your Honour, we are not. May we say, in

response to that development, that the Court now has

sufficient cases before it in order to deal with any

wider questions that arise. Secondly, they arise in

the context of the criminal law - - -

MASON CJ: But this case is coming on first. This is the

first application that we have embarked upon

hearing. The other two are, as it were, awaiting hearing

as special leave applications.

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MR GROSS:  May I put it in a different way. They concern the

operation of the criminal law where there has to be

certainty and where protective measures have to be

taken by employers of the relevant kind.

MASON CJ:  But none the less, it seems that in those cases in

Victoria the Full Court has elected to follow the dissenting judgment in this case. So that we have a

conflict of authority between two States.

MR GROSS:  That is correct, Your Honour. May I point out this

consideration then. If those cases from Victoria do

require consideration by this Court, they would be

more appropriate vehicles for determining the matter

at large than this case. This case- - -

MASON CJ:  How can you say that, if you are not familiar with

those cases?

MR GROSS:  My familiarity is growing by the second, Your Honour.

What we put is this, that the criminal law continues to have its operation in order to determine the scope of

safety precautions required in modern factories. This

case is concerned not merely with an accident some

eight years ago but in an area where the common law is
rapidly disappearing because of legislative developments

which have overtaken the common law,greatly restricting

the rights of workers to claim damages in this area.	So
the decision in this case would have no real impact for the future in determining how other cases are to be dealt with because the reality would be that the number of such cases would be few, at the most, and would not
involve fine points of distinction concerning whether
a part is dangerous or not.

TOOHEY J: Is that comment directed at New South Wales or the

whole of Australia?

MR GROSS:  Not directed to the whole of Australia.

Your Honours, the legislation in this State is in a

situation of flux but we merely point to the fact that

there is uncertainty concerning the future operation of

any decision concerning section 27 because of the

restriction of worker's rights which appears to have

become the pattern.	But I am not speaking for the whole
of Australia, I appreciate that.	But in our submission

the two reasons which would stand in the way, we would

suggest, of granting special leave would be that it is in the area of future protection of workers that there ought be the certainty, rather than in relation to

this area which may only have historical importance.

The second aspect is that the Victorian cases

are ones which are dealing with recurring issues which are of importance in relation to the administration of

the Act, whereas this case is one which does not pose

those problems and is dealing with a particular set of

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facts which require consideration by reference to an

accepted criterion that there must be a dangerous

part that has a relevant causal connection. And, in

our submission, the correct test has been applied and

it is really a matter of whether it was correctly

found by the majority that the part concerned, that is

the gripper head, was in the context of what occurred

a dangerous part.

I think that completes what I have to say,

Your Honour.

MASON CJ:  Thank you, Mr Gross.

The Court need not trouble you, Mr Ward. There

will be a grant of special leave to appeal in this

case.

AT 10.59 AM THE MATTER WAS ADJOURNED SINE DIE

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