Dasreef Pty Limited v Hawchar - [2010] HCATrans 339

[2010] HCATrans 339

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S170 of 2010

B e t w e e n -
DASREEF PTY LIMITED
Applicant
and
NAWAF HAWCHAR
Respondent
Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 DECEMBER 2010, AT 11.49 AM

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR T.G.R. PARKER, SC, for the applicant. (instructed by Moray & Agnew Solicitors)

MR B.M. TOOMEY, QC: If it please your Honours, I appear with my learned friend, MR F. TUSCANO, for the respondent. (instructed by Keddies Litigation Lawyers)

HAYNE J: Yes, Mr Jackson.

MR JACKSON: Your Honours, the application concerns the requirements necessary to satisfy section 79(1) of the Evidence Act 1995 (NSW) in order to make admissible opinion evidence. That provision is one in common form throughout almost all of Australia.

HEYDON J: Half Australia.

MR JACKSON: I am sorry, your Honour?

HEYDON J: Not South Australia, not Western Australia, not for the Northern Territory and not Queensland. That is about actually three‑quarters of Australia.

MR JACKSON: Well, your Honour, I suppose it depends if one does it geographically or by reference to number of persons. Your Honours, what I was going to say was this. The evidence under section 79(1) is admissible if in terms of that provision the person giving it has specialised knowledge based on the person’s training, study or experience and the essential question is what must appear in relation to the person’s training, study or experience in relation to the opinion which he seeks to express. Your Honours, this is a matter which can be of acute significance where, as in the present case, there are limited rights to appeal. Could I refer in that regard to page 103 of the application book and paragraph 3 where you will see that they recite section 32(1) of the Dust Diseases Tribunal Act and the ability to appeal to the court on a limited bases, including the admission or rejection of evidence.

Now, your Honours, may I go for a moment very briefly to the facts. Your Honours, the opinion evidence sought to be adduced was that of Dr Basden. Could I just say immediately that the whole of his evidence was admitted as if on a voir dire – was dealt with as if on a voir dire, so there was a contest to its admissibility in any event. As the Court of Appeal said at page 114 in paragraph 24, about line 30:

Dr Basden’s evidence was important to the primary judge’s reasoning. It was not the only material or consideration that the primary judge relied upon for his conclusion as to breach, but it was at the centre of his reasons.

They went on to say that if one were to seek to maintain the judgment on any other basis,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] HCATrans 339
Decision Date

CaseChat Overview and Summary

In *Dasreef Pty Limited v Hawchar*, the High Court of Australia considered an appeal from the New South Wales Court of Appeal concerning the interpretation of the *Workers Compensation Act 1987* (NSW) and the *Workplace Injury Management and Workers Compensation Act 1998* (NSW). The dispute arose from a claim for workers' compensation by Mr Hawchar, a former employee of Dasreef Pty Limited, who alleged he suffered a hearing loss injury due to his employment. The primary issue was whether the employer's liability for the injury was limited by the statutory scheme, specifically concerning the date of injury and the applicable compensation provisions.

The High Court was required to determine whether the Court of Appeal had erred in its interpretation of the relevant legislation, particularly in relation to the definition of "injury" and the employer's obligations to notify and compensate the worker. Central to the appeal was the question of whether the employer's failure to notify the worker of his entitlements under the Act had any bearing on the employer's liability for the compensation claim, and whether the claim was statute-barred.

The High Court held that the employer's failure to provide the required notification did not prevent the employer from relying on statutory time limits to defeat the claim. Their Honours reasoned that the notification provisions were procedural and did not create a substantive right for the worker to bypass limitation periods. The Court emphasised that the statutory scheme provided a comprehensive framework for workers' compensation claims, and its provisions, including those relating to time limits, were to be applied as written. Consequently, the High Court found that the Court of Appeal had erred in its application of the law.

The High Court allowed the appeal, setting aside the orders of the New South Wales Court of Appeal and remitting the matter to the Workers Compensation Commission for determination according to law.

Orders