Daly v Thiering and Ors

[2013] HCATrans 139

[2013] HCATrans 139

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S38 of 2013

B e t w e e n -

JOHN DALY

Applicant

and

ALEXANDER THIERING

First Respondent

ROSE MATILDA THIERING

Second Respondent

LIFETIME CARE & SUPPORT AUTHORITY OF NEW SOUTH WALES

Third Respondent

Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 JUNE 2013, AT 10.28 AM

Copyright in the High Court of Australia

MR K.P. REWELL, SC:   If the Court pleases, I appear for the applicant with my learned friend, MR D.M. WILSON.  (instructed by Moray & Agnew Solicitors)

MR E.G. ROMANIUK:   If the Court pleases, I appear with MR E.E. GROTTE for the first and second respondents.  (instructed by Slater & Gordon Lawyers)

FRENCH CJ:   Thank you.  There is a submitting appearance, I think, for the third respondent.

MR REWELL:   As there was in the Court of Appeal, your Honour.

FRENCH CJ:   Yes, Mr Rewell.

MR REWELL:   This application, we contend, raises important questions of principle concerning statutory interpretation and raises an important question of statutory interpretation so far as the insurance industry and, in particular, the compulsory third party insurance industry in New South Wales is concerned.

FRENCH CJ:   The particular problem, as I understand it, has been overcome by legislative amendment, but there is an actuarially asserted potential claims liability of about $40 million.  Is that right?

MR REWELL:   That is so.

FRENCH CJ:   That is what this is really about.

MR REWELL:   The liability continues to accumulate because the legislative amendment which was not retrospective excludes only those matters where claims for damages for gratuitous care had not been made by the operative date, which is May or June 2012, so there is a window of a little less than six years during which the claims, if made, continued to be effective under the Court of Appeal decision.

FRENCH CJ:   What the effect of the decision is to allow recovery for gratuitous care and services up to the point of judgment or settlement for a person who is a lifetime participant in the system.

MR REWELL:   Yes, and because the participants are, by definition, catastrophically injured persons the claims are, generally speaking, not modest.  I should frankly tell the Court that there is legislation before the Parliament in this State at the moment which will apply to motor accidents at some future date or from some future date which, if not otherwise amended, will abolish the right to damages for gratuitous care altogether for all motor vehicle accident victims in New South Wales.

FRENCH CJ:   Is that prospective?

MR REWELL:   It will be prospective and it will apply only to motor accidents after a date, presumably some time in 2014.

FRENCH CJ:   We need not be concerned about that ‑ ‑ ‑

MR REWELL:   That just fills the picture in.

FRENCH CJ:   Thank you.

MR REWELL:   There is no factual issue relevant to this application.  There is no doubt about Mr Thiering’s injuries; there is no doubt about his eligibility for permanent lifetime participation in the scheme.  Nor, we contend, is there any doubt about what the scheme was intended to do.  Indeed, that was stated concisely by the trial judge, Justice Garling.  If your Honours turn to page 31 of the application book under the heading, “Purpose of the Legislation” his Honour regarded it as “tolerably clear” that there were a number of aspects to the intention of Parliament in connection with the scheme.  Small (d) is important:

Because the LCS Scheme would attend to the provision of lifetime treatment and care, an injured person would not need, and would not be entitled to, compensation by way of damages for any treatment and care needs including attendant care –

That, we submit, is absolutely correct.  There was no demurrer by the Court of Appeal yet the outcome of the case is quite to the contrary.

FRENCH CJ:   Ultimately, this turns upon the concept of reasonable expenses, does it not, in section 6?

MR REWELL:   What the Court of Appeal – the Court of Appeal’s approach which was a little different from the trial judge was that the object of the provision in the Motor Accidents Compensation Act which is section 130A was to prevent double recovery, that is, where a person had had their care needs provided for in the scheme they ought not receive damages because they would have received the care under the scheme.

Where, we respectfully submit, the courts below went off the rails here is in allowing themselves to be distracted by whether or not the care Mr Thiering has been provided with was paid for by the lifetime care scheme.  There is no doubt that the scheme, or the Lifetime Care Authority which administers the scheme, has permitted the family members of Mr Thiering, particularly his mother, and many other family members of many other participants, to play a role in the provision of care to the participant.

FRENCH CJ:   This was subject to constraints under its guidelines, was it not?

MR REWELL:   It has enacted guidelines or passed guidelines which deprive the Authority of any need to pay the family members for the care that they provide.  I should say that the Authority does not press the family into service.  The Authority offers to the family the opportunity to undertake some of the care if it wishes to do so - and Mrs Thiering said that she would – but it declines to pay the family members at any rate for the care.

The question here, though, is whether by including Mrs Thiering and other family members in the care plans of the participants the care has in fact been “provided for” because those are the words used in section 130A.  The short point is that by producing care plans that provided for all of Mr Thiering’s care needs – and there is no doubt that happened – the prohibition in section 130A against obtaining damages for gratuitous care was enlivened.

What the Court of Appeal did, we say contrary to principle, was to specifically and explicitly read the words “provided for” as being the words “paid for”.  We say that there was simply no mandate, even on a purposive construction or any other construction for the Court of Appeal to do so.  The literal meaning of the words “provided for” in fact met exactly the legislative purpose identified by the courts themselves, for example, at page 31 of the application book in (d).

It was the Authority’s obligation to ensure that all Mr Thiering’s care needs were provided for and it did.  The fact that not all of the care provided for had to be paid for has nothing to do with the prohibition in section 130A so we contend, because the words “provided for” are specifically used in the section.  In a nutshell, our argument is that both the trial judge and the Court of Appeal, although for slightly different reasons, allowed themselves to be distracted from the correct course in the matter of construction and interpretation of section 130A.

What the courts should have done was said the purpose of the legislation has been identified and correctly identified by Justice Garling.  The words of the legislation are clear, the literal meaning of the words of the legislation is beyond doubt and the legislative purpose and the words of the legislation, when read literally, coincide exactly.  That left no opportunity, we respectfully submit, for a contrary construction or interpretation of section 130A. 

The court was concerned that that might leave Mr Thiering and/or his mother uncompensated for her endeavours.  There are a number of points about that.  Firstly, there is nothing to indicate that compensation for endeavours such as those noble endeavours of Mrs Thiering have to be compensated somewhere.  Secondly, as the Court of Appeal itself acknowledged, Mrs Thiering has standing to bring proceedings against the Lifetime Care Authority herself and is doing so, albeit her claim requires repleading.

The problem with the way the Court of Appeal has approached the matter is that it has created a very substantial liability in the insurance industry which continues to accumulate and for which premiums have reasonably not been charged.  One might comment on the approach of the Lifetime Care Authority perhaps adversely, one might not, but that is irrelevant to the question of construction.  The construction point, we respectfully submit, is crystal clear.  The error made by the Court of Appeal, and for different reasons the trial judge, is plain to demonstration.

We do not need to look at the Minister’s speech for the purpose of this application because the purpose of the legislation has been correctly identified by Justice Garling and with apparent approval of the Court of Appeal, so we do not need to go down that road.  What we need to do is to look at the approach to statutory interpretation of the Court of Appeal and identify the error and the error is, as I have said, that where a literal reading of the legislation and a purposive reading of the legislation compelled one result, the court came to another, demonstrating a need to clarify – and this is the special leave point – these principles of statutory construction.

FRENCH CJ:   So you are putting it – this is not a question of the construction of a particular statute but a question of the – you are not suggesting that the principles of statutory construction are in doubt.  You are saying it is a misapplication of the principles or a failure to apply the principles?

MR REWELL:   Yes, a misapplication of the principles, we say, but also requires emphasis in the sense that where the literal approach to interpretation and the purposive approach to interpretation lead to the same outcome, it should be emphasised by this Court that no other outcome is available.

FRENCH CJ:   You are really running this as a visitation case, are you not?

MR REWELL:   What Justice Gummow used to call a revisitation appeal - not entirely – partly, but not entirely.

FRENCH CJ:   You are not suggesting the law is in doubt.  In terms of statutory interpretation you are saying that they got the interpretation wrong in this particular case.

MR REWELL:   Yes, but for reasons which are important.  As I say, it needs to be emphasised that where the two primary approaches to statutory interpretation lead to the same outcome then there should be no alternative consideration given or no consideration given to an alternative approach and that is the point in a nutshell.

FRENCH CJ:   Yes, thank you very much.  Yes, Mr Romaniuk.

MR ROMANIUK:   Thank you, your Honours.  Your Honours, can I take the Court, in the first instance, to the provisions of 130A which the Court can pick up at application book 93.  What I want to do is demonstrate how, leaving the speeches aside, the ministerial speeches which Mr Rewell does not make reference to in his submissions but which feature very heavily in his written submissions, how the Court of Appeal answered, essentially, the literal interpretation on the provision.  Section 130A is at application book 93 and the relevant words are, “that are provided for or are to be provided” which appears at about line 18.  Over the page on application book 94, section 6(1):

The Authority is to pay the reasonable expenses incurred by or on behalf of a person –

So it is the phrase “reasonable expenses incurred by or on behalf of a person”.  It is noteworthy that section 6(2) when it makes reference to what “the treatment and care needs” are, items (a) through to (m) do not extend to any voluntary services.  Going to the Court of Appeal’s conclusion at paragraph 67 which is at application book 108 - if I could take the Court to the conclusion first and then the preceding paragraph that explains it - paragraph 67, if you could go to the last sentence first:

This was the effect of the language used even though it may not have been what Parliament intended.

That is his Honour Justice Hoeben with whom the other members of the court agreed.  Below the argument on this aspect was put ‑ ‑ ‑

FRENCH CJ:   I think this Court has made reasonably clear in recent times - and not least in Lacey v Attorney‑General of Queensland but the question of legislative intention is really an after‑the‑event declaration of the application of the rules of construction.  Purpose, of course, is another issue and one looks to things like second reading speeches and so forth to identify purpose and the structure of the legislation itself.

MR ROMANIUK:   We do not differ from that.

FRENCH CJ:   Parliamentary intention is a little bit of a difficult thing to pin down.

MR ROMANIUK:   I was just going to make the point that that last sentence reflects the argument that was put below which was there was this fully‑funded concept which was to be picked up from the two ministerial speeches and that is what his Honour is referring to there, but what his Honour says, essentially, in 67 at about line 25 through to line 40 is that when one looks at section 6(1), the expenses reasonably incurred, it would be an unwarranted distortion of the language to read into that phrase Griffiths v Kerkemeyer type damages which are reflected in section 128 because they are voluntary services.

FRENCH CJ:   But that is a construction of the term “reasonable expenses incurred” and it is the exclusion from that category of Griffiths v Kerkemeyer recovery that takes you outside the exclusion of section 130A.

MR ROMANIUK:   I think my answer to that is yes, but in case I have misunderstood what your Honour has posited, what the Court of Appeal said was that because they were voluntary services and they were not paid for there was no obligation under LCS section 6(1) to pay.

FRENCH CJ:   That is right, therefore not contemplated by 130A.

MR ROMANIUK:   That is correct and so 130A had no part to play, at that stage, to exclude them.  That is how the Court of Appeal just on the literal wording and in effect looking at the whole of the statute itself dealt with.  What was argued heavily in the court below was that the interpretation that my friend’s client advances was the result of this concept of the fully‑funded intention to be garnered from the ministerial speech when it was introduced.

My friend puts his application for special leave on the basis that the ministerial speech does not arise at this stage but treating the submissions that have been filed in the summary of argument as indicating that it will arise sometime in the future, the issue about the ministerial speech is that it does not present an unambiguous intention on the ministerial speech. 

If I could take the Court firstly to application book 136 - this is the speech set out at the top of 136 at about lines 5 through to 20 which is the speech that introduced the legislation under question and at that stage the speech is directed towards the funding of the Lifetime Care and Support Scheme and it makes the point that that scheme will be fully funded by the imposition of a levy.  In the second paragraph it makes the point that this “fully funded” requirement is consistent with the requirements on a licensed insurer but, nonetheless, that speech is directed towards the proposition that the Lifetime Care and Support Scheme would be fully funded. 

In the summary of argument what is said is that that gives rise to the implicit proposition, and that is the phrase used, or the characterisation used in the applicant’s reply, the implicit proposition that the premium calculation for the CTP Insurers would be fully funded as well and it is by that process of divining the implicit intention that it is then said that the provided for argument and expenses incurred must not mean that “provided for” means paid for.

Drawn in aid of the parliamentary speech concept is the second parliamentary speech which is reproduced at application book 142.  This is the speech that accompanied the introduction of the amending legislation and is it at 142 at about line 10:

Compulsory third party insurers have calculated their premiums on the assumption that they were no longer liable for any of the treatment and care expenses of participants in the lifetime care scheme.  This was a reasonable thing to do, considering the clear intent of the original legislation as clearly expressed by Minister Watkins in his speech introducing the original legislation.

Whatever province the ministerial speech introducing the amendments can have in relation to interpreting the legislation as originally introduced all it is saying is that this amending legislation is to overcome something.

FRENCH CJ:   It identifies a purpose and you use the purpose to assist in construing the legislation, whether a constructional choice is open.

MR ROMANIUK:   Yes, but we say that when the process at Court of Appeal 67, which is the conclusion – paragraph 67 at application book 108 is understood it reflects the outcome in the Court of Appeal that the Court of Appeal looked at the way the various provisions of the legislation operated together and it concluded that that was the operation as set out in 67.

We make the point in our written submission by reference to the decision of this Court some years ago in Re Bolton; Ex parte Beane that, in essence, this case, if an occasion for reconsidering how to use speeches in the process arises in the Bolton Case the Court identified that it was an

unambiguous statement of intention.  We say that that is a material difference in the present case because the ministerial speeches are talking about the funding of the Lifetime Care and Support Scheme and its fully‑funding requirement and not the funding of premium calculation. 

So, we say, in effect, it is not a suitable vehicle because as my friend puts in his reply submission, the intention of “fully funded” is implicit in the first speech, he says, but more explicit in the second speech on the different legislation.  We say that that means in context that this Court will in part be engaged in the process of whether or not it should imply the “fully funded” references to the Lifetime Care and Support Scheme in the first speech as having an additional legislative intention that it should be fully funding the premium calculation, all in a setting where we say that because voluntary services are not met by the Lifetime Care and Support Scheme they are not paid for under section 6(1).

So the conclusion in respect of section 130A was that they were not provided for and the double compensation purpose of section 130A has no part to play until damages are recovered later and as the Court of Appeal and as did the trial judge conclude there was no necessarily express or explicit statutory language in section 130A to abolish section 128 damages in this category of case.  If it please the Court.

FRENCH CJ:   Thank you.  Yes, Mr Rewell.

MR REWELL:   Your Honours, my learned friend took the Court to the speech of the more recent Minister in 2012.  The Minister then had no doubt that the scheme was supposed to be fully funded.  He pointed out - and this is in the materials book, it is page 2 of the speech – that if the decision of the Court of Appeal of Justice Garling stands:

motorists will be paying twice for meeting the treatment and care costs of lifetime care scheme participants; once by the payment of –

the separate levy which was designed to meet those treatments and care costs and a second time in paying third party premiums if insurers are required to meet this burden which to date has been unfunded, but regardless of any argument as to the “fully funded” basis of the scheme, the simple fact is that the Court of Appeal misconceived what the words “provided for” in section 130A represent.  The obligation of the Lifetime Care Authority is to provide for all of the care needs of participants which it does by formulating and putting into effect care plans, as has been done for Mr Thiering.

KIEFEL J:   So do you say that what was provided by way of voluntary care would come under what is referred to in section 6(2)?

MR REWELL:   That certainly could be one interpretation.  Alternatively, while it is not literally an expense under section 6(1), as we know Mrs Thiering may have a right of action herself in respect of the services she has provided.

KIEFEL J:   But you say that what is provided for under section 6(2) relevantly may be attendant care services, domestic assistance?

MR REWELL:   It may be.

KIEFEL J:   Yes, I see.  That is what you say is provided for by the scheme itself?

MR REWELL:   Yes.

KIEFEL J:   So the distinction you draw between the approach of the Court of Appeal is that “provided for” refers to what the scheme enables and they have read it as “paid for”?

MR REWELL:   Yes, and the words “provided for” are clearly distinct in their meaning from “paid for” and in the context of this legislation the purpose of the distinction is obvious and it was simply impermissible as a matter of statutory interpretation to substitute for the words “provided for” the words “paid for” because perhaps, with respect, the court considered the words “paid for” to be more convenient.

KIEFEL J:   I think the Court of Appeal was influenced by the reference earlier in the section to “damages”, it being suggested that it conveyed something more akin to a payment.

MR REWELL:   That, we respectfully submit, further demonstrates the error, the interpretation.  The literal meaning of the words “provided for” achieved precisely what the statutory purpose was.

KIEFEL J:   Do you place any reliance upon the heading to section 130A?

MR REWELL:   I do not think I am able to because as a general rule of statutory interpretation headings are not part of the legislation and I can tell your Honours that there is ‑ ‑ ‑

FRENCH CJ:   …..the local Interpretation Act say?

MR REWELL:   That is what the Act says.

FRENCH CJ:   Yes.

MR REWELL:   There is nothing in the Motor Accidents Compensation Act to alter that situation.  The Act does not provide anywhere that headings are to be taken into account in construing legislation so I would be less than frank if I relied on that heading.

FRENCH CJ:   Thank you.  There will be a grant of leave in this matter.  I notice that there is a condition that the applicant will pay the costs of the first and second respondents, regardless of the outcome.

MR REWELL:   Yes.  I have instructions to accept that condition.

FRENCH CJ:   Yes.  What is your estimate of time, Mr Rewell?

MR REWELL:   Certainly no more than one day.  It would be one day or less.

FRENCH CJ:   Yes.  Do you agree with that, Mr Romaniuk?

MR ROMANIUK:   I do, your Honour.  Could I just note that on the costs concession the concession extended to not disturbing the costs orders ‑ ‑ ‑

FRENCH CJ:   Not disturbing costs orders below.

MR ROMANIUK:   Accepted.

FRENCH CJ:   Yes, all right.  Thank you. 

AT 10.57 AM THE MATTER WAS CONCLUDED