Dedousis v The Water Board

[1994] HCATrans 44

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
              Sydney           No S64 of 1994

B e t w e e n -

GEORGE DEDOUSIS

Appellant

and

THE WATER BOARD

Respondent

DEANE J
DAWSON J
TOOHEY J
GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 6 OCTOBER 1994, AT 10.17 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR A.F. PUCKERIDGE, QC, for the appellant.  (instructed by Maurice May & Co)

MR B.M. TOOMEY, QC:   May it please Your Honours, I appear with my learned friend, MR D.J. BROGAN, for the respondent.  (instructed by The Water Board Legal Services Division)

DEANE J:   Yes, Mr Jackson.

MR JACKSON:   If the Court pleases, Your Honours should have copies of an outline of submissions, together with two other documents to which I will refer in just a moment if I may. 

DEANE J:   We will just take a moment to read the outline of submissions.  Yes, Mr Jackson.

MR JACKSON:   Your Honours, the second document is a proposed amendment to the notice of appeal.  Your Honours will see that there is a last paragraph that has been added to it on page 2, paragraph g.  It was, in effect, simply an omission by error in our  notice of appeal because the notice of appeal left out of account the fact that if we are otherwise successful there was still an issue whether we did or did not fit within the provision as satisfied.  I do not think there is any objection to that, Your Honours, and the argument on the point will occupy about 10 minutes.

DEANE J:   Mr Toomey, the amendment is consented to, is it?

MR TOOMEY:   Yes, we do not have any difficulty with that.

MR JACKSON:   Your Honours, the third thing is that Your Honours will see a copy also of the Limitation Act.  The reason why we have given Your Honours a copy is that there was an amendment to Schedule 5 which Your Honours may not otherwise have - on page 49, it should be handwritten in.  It does not make any difference to the resolution of the case but it does affect the terms in which the provision is expressed. 

DEANE J:   Yes, Mr Jackson.

MR JACKSON:   Thank you, Your Honour.  Your Honours, as is apparent from the outline of submissions, the appeal is concerned, ultimately, with the operation of two provisions of the Limitation Act, namely section 60G and clause 4(4)(b) of Schedule 5.  As Your Honours have seen, the appellant’s cause of action was for a deafness brought about by his employment and it arose from his employment by the respondent in two periods:  1963 to 1965, 1971 to 1990.  His employment is summarised in a part of the record to which I will come a little later and Your Honours will there see it relatively conveniently set out.

Your Honours, the cause of action arose before 1 September 1990, and the significance of that date and the fact that it arose before that date derives from the terms of clause 4(1) of Schedule 4 at page 48 of the pamphlet copy of the Act.  Your Honours will see that clause 4(1) of Schedule 5 says that:

Section 60G also applies to a cause of action, founded on negligence, nuisance or breach of duty, being a cause of action that accrued or would have accrued before 1 September 1990.

Now, Your Honours, that provision, according to its terms, applies to the cause of action in question in the present case.  It also, and I am speaking again of clause 4(1), indicates the cases to which section 60G of the Act is to apply by the operation of clause 4.

Now, Your Honours, I will come to section 60G in just a moment if I may.  But may I go first to the other provisions of clause 4.  Clause 4(2) deals with section 60H of the Act which is concerned with, to put it shortly, Lord Campbell’s Act claims which arose before 1 September 1990.  Your Honours, the wide ambit of clause 4 may be seen from two things:  first, subclause (3) at the top of page 49, and I will not read it out, but Your Honours will see that section 60G applies even if an action has been commenced, for example, and a judgment on the ground of the limitation period has been given.  I would refer Your Honours also to the ambit of clauses 5(2) and 5(3).

Could I go then, Your Honours, to clause 4(4).  Your Honours will see that it provides that:

The court may make an order under section 60G or 60H, in relation to a cause of action referred to in this clause, if an application for such an order is made, within -

one of two periods.  The first period is 3 years:

the period of 3 years referred to in section 60I -

the second, as Your Honours will see, is simply:

a period of 3 years commencing on 1 September 1990 - - -

TOOHEY J:   Mr Jackson, is it subparagraph (4) that makes this a transitional provision?  If you took subparagraph (1) on its face it simply, as it were, supplements section 60G by bringing in actions in which the cause of action accrued before 1 September 1990; section 60G dealing with causes of action that accrued after that date.

MR JACKSON:   Your Honour, I will come to the terms of section 60F and 60G and so on in a few moments, if I may.

TOOHEY J:   Yes, my question really is, what is it that is transitional?  Is it the fact that in the cases covered by paragraph (4) the application has to be made by a certain date?

MR JACKSON:   Your Honour, “transitional”, if I could use that expression, is one that the draftsman has used in the heading to the schedule.  It is a convenient rather than perhaps an exact term, because what is done by Schedule 5, together with the other provisions of the Act relating to causes of action arising before 1 September 1990, is to give them, in effect, a partially new regime and the end part of that regime is dealt with by Schedule 5. 

Your Honour, I will come to indicate that in just a moment, but it is transitional in the sense that one sees that it has an obvious temporal limitation, not a complete one, but an obvious temporal limitation in clause 4(4)(b).  Your Honour, I do not want to be caught up necessarily in what is meant or might not be meant in the abstract by “transitional”, but what we will be submitting is that clause 4(4)(b), for example, is a provision which gives an additional right but only for a limited period. 

Could I come to that in a sense now to indicate what the argument will be and, Your Honours, what we would say is this, that in clause 4(4)(a) there is a reference to section 60I; in clause 4(4)(b) there is not, and in relation to clause 4(4)(b) the provision simply says that an order may be made under section 60G in respect of a pre-September 1990 cause of action but only within that three-year period.

Could I take Your Honours then to section 60G at page 37.  Now, Your Honours will see that in section 60G(1) it refers to causes of action arising after 1 September 1990 and, on its face - if I could just pause for a moment, on the face of section 60G, it allows in subsection (2) the making of an order extending the limitation period if the court decides that it is just and equitable so to do.

Your Honours, pausing at that point, if one looks at section 60G by itself, that is all it does.  It does not provide for any other test, it simply says that the question is whether it is just and equitable to extend the limitation period.  Your Honours, that is the first argument which we will be advancing.  To develop it a little I need to go to the provisions of the Act in more detail, but may I indicate in broad terms what that first argument is:  that is, that the application to the provisions of section 60G of the provisions of clauses 4(1) and 4(4)(b) of Schedule 5 means, in our submission, two things;  the first is that there is, in effect, a three year moratorium, if I could adopt and perhaps adapt the word, in respect of causes of action accrued before 1 September 1990.  Secondly, that an order extending time in cases of that class may be made if it is just and equitable that that occur.  Our submission also is that that issue, whether it is just and equitable, is the only issue which needs to be dealt with once it appears the case is within clause 4(1) of the Schedule.

DEANE J:   Mr Jackson, was this argument referred to in the judgment below?  I am not conscious of it being dealt with.

MR JACKSON:   Your Honours, it is right to say that the court does not deal with it, but that is really because the earlier decisions in the court are the decisions which - - -

DEANE J:   I follow you.

MR JACKSON:    - - - really give rise to - I am going to take Your Honours to the, in effect, three decisions on the provisions that really lead to the present situation and, Your Honours, what we will be submitting is that the decisions adopt a really rather curious result, and it is necessary to look at the three to see the course that has been followed.

In our submission, on the basis of that submission, the present case would fall directly within the provisions, and our submission will be that the courts below erred in not going on to consider whether it was just and equitable to order the extension of the limitation period.

Your Honours, the potential complication, if I can put it that way, arises from two provisions of Subdivision 3 which appear at pages 36 and following.  They are section 60F and section 60I. 

Perhaps I should take Your Honours to them first.  Your Honours will see from the terms of section 60F that it is divided up into two sentences.  The first sentence says that it: 

is to provide a procedure for a further discretionary extension of limitation periods where the plaintiff was unaware of the fact, nature, extent or cause of the injury, disease or impairment at the relevant time.

It says, Your Honours, that:

procedure is available for causes of action accruing on or after 1 September 1990, and also (by the operation of Schedule 5) for causes of action that accrued before that date.

If I could go then to section 60I.  What Your Honours will see is that in subsection (1), which is that relevant for present purposes, it provides a limitation upon the ability to make an order under section 60G, unless the court is satisfied of the three matters as to knowledge referred to in paragraph (a) and then the application has been made within the temporal provision of section 60I(1)(b). 

Could I endeavour to put shortly in two propositions what has been decided by the Court of Appeal in relation to those provisions, and they are these.  The first is that clause 4(4)(b) is not freestanding in the sense to which I have referred.  What has been held is that it applies only to cases which fall within the first sentence of section 60F.  That is the first thing.

The second thing that has been held is that although as a matter of form section 60I would appear to be the substantive or operative provision, and section 60F, as a matter of form, appears to be an introductory statement of the purpose of the Act.  It has been held that section 60F but not section 60I is the provision that is material in a clause 4(4)(b) case.

TOOHEY J:   If you just put clause 4(4)(b) cases to one side, how does section 60F and section 60I stand together?

MR JACKSON:   In this way, Your Honour - could I just pause to add that this deals with our second argument and it assumes the first one does not succeed.  But if Your Honours look at the first sentence of 60F, Your Honours will see that it refers to the plaintiff being unaware of four things:  fact, nature, extent or cause.  The provision is, if I can put it this way, a provision which is introductory in the sense that it purports to be stating what the purpose of the subdivision is, it does not itself make any provision of any kind.  Then one goes to section 60I and Your Honours will see the way in which paragraph (a) is expressed:

(i) did not know that personal injury had been suffered -

that seems to equate to fact in 60F.  Then:

(ii) was unaware of the nature or extent -

that seems to relate to the term “nature and extent” in paragraph 60F.  Then the next one:

(iii) was unaware of the connection between the personal injury and the defendant’s act or omission.

Cause seems to be the synonym for that.

TOOHEY J:   If it was not, it would be difficult to run the two sections together, would it not?

MR JACKSON:   Of course, yes.

TOOHEY J:   And yet you wonder why the draftsperson did not pick up the language of section 60F and use it in section 60I.

MR JACKSON:   I will take Your Honours to these provisions in just a moment, but each of the three subdivisions has, in effect, a drafting method or convention that has been adopted with, in effect, a statement of the purpose of the following subdivision.  If Your Honours look, for example, at page 30, section 57 ‑ it is really a shorthand version of what follows; and similarly, if one goes then to the next Subdivision, Subdivision 2 section 60A on page 34, again, it is a short statement of what the operative provisions are designed to achieve; and the same, Your Honour, in section 60F.  So there would be no point in having the summary, in effect, if the summary did not summarise something, Your Honour.

That is why, in our submission, if one is looking to see what is the relevant test to be applied, the test is that in 60I, not the test in 60F.

TOOHEY J:   Yes, I see that.

DAWSON J:   Section 60F really achieves nothing very much at all except to obfuscate what appears in section 60I.

MR JACKSON:   Your Honour, in a sense that is right.

McHUGH J:   But it has no substantive effect, does it? 

MR JACKSON:   That is so, Your Honour, yes.

McHUGH J:   It is an interpretation tool.

MR JACKSON:   If I can put it this way, it is a different form of drafting from the form of drafting that was used in the past and it is to make it easier for people to understand what provisions of Acts are doing.

DAWSON J:   It does not.

DEANE J:   It is a bit like a preamble ahead of the relevant division.

TOOHEY J:   Or even some of the old style marginal notes purported to paraphrase the content of the section.

MR JACKSON:   Yes, a great source of litigation over the years.  And, Your Honours, one sees different expressions and, of course, this Act is an Act that is, I suppose, a palimpsest in a way, because it has been worked over a little and had pieces added to it by those of different drafting training over different years.  One sees in more modern forms of drafting dictionaries as distinct from just the definitions and so on.  That was what I was endeavouring to say in answer to Your Honour Justice Toohey.

Could I go on to say that to develop the two submissions we wish to make, may I go first broadly to the structure of the Act and the way it works in relation to the two classes of actions, pre and post‑September 1990.  Until the 1990 amendments, Your Honours, the period of limitation for personal injury actions was six years.  The 1990 amendments changed that period to three years.  That is done by section 18A(2) at page 10.

Your Honours will see that in subsection (2) the period is three years.  Section 18A(1) makes it apparent that the new period of three years applies only to causes of action accruing on or after 1 September 1990; that is 18A(1)(b).

In relation to the position of causes of action which had accrued before 1 September 1990, the transitional provision in, I suppose, the more traditional sense of the term is in section 6.  Your Honours will see, if I could go first to section 6(1)(d), at page 3, it provides that noting in the Act:

prevents the commencement and maintenance of an action or arbitration within the time allowed by an enactment or an Imperial enactment repealed or amended by this Act -

and Your Honours will also see that subsection (1) starts with the words “Subject to”, it refers to three things.  The references to Division 3 of Part 3 are the provisions that start at, I think, section 57, the ones to which I referred a moment ago and to which I will come.  Schedule 5 is the schedule dealing with the pre-September 1990 causes of action. 

Your Honours, if I could go then to page 30, to Division 3, Your Honours will see that section 57 indicates the purpose of that subdivision and Your Honours will see that it provides in short, in 57A and also in 57, that it applies only to causes of action that accrued before September 1990 and the essence of what it says is that in such cases there may be an extension of the limitation period beyond the period of six years and the operative provision is 58(2).

Section 58(2) has the effect that there may be up to a year’s extension if a material fact was not within the plaintiff’s means of knowledge until a date after the start of the last year of the limitation period.  I said “a year”; it does not necessarily follow that the date from which that year starts is the end of the limitation period.  Your Honours will see that from the terms of section 58(2)(a), but it does provide for there to be up to a year’s extension of the limitation period from the date on which the relevant means of knowledge applied.

So that is the position in relation to the pre‑September 1990 causes of action.  Could I go then to the post-September 1990 causes of action.  They are dealt with by the next subdivision, commencing at page 34, section 60A.

Your Honours will see in section 60B that it:

applies only to causes of action that accrue on or after 1 September 1990 -

and, as section 60A indicates, the purpose is to allow an up to 5 years extension of that period and the test to be applied in determining whether to grant such an extension is whether to do so would be just and reasonable.  That is provided for by section 60C(2).

Now, Your Honours, the matters to which the Court is specifically, though not exhaustively, to have reference in that regard are set out in 60E(1).  They are, Your Honours, the matters that one might think would, in the ordinary course of events, be relevant to the question of the “just and reasonable” question but, in the end, the question is simply whether it is just and reasonable to extend the time for up to 5 years.

Now, Your Honours, they, as I was submitting a moment ago, and as section 60G makes clear, are causes of action arising after 1 September, and in the case of such a cause of action Subdivision 3, commencing at 60F on page 36, allows for a further extension of that period in the circumstances to which reference is made.  I use the expression “further extension of time” because if Your Honours go to section 60J at page 38 Your Honours will see that an order cannot be made under Subdivision 3 unless the time has expired for the making of an order under the 5 year provision of the previous subdivision.

TOOHEY J:   So that is after 8 years, effectively.

MR JACKSON:   Yes, this is the post‑September 1990 cause of action.  Now, Subdivision 3, as Your Honours will see in section 60G(1), to which I referred earlier, provides that section 60G:

applies to a cause of action that accrues on or after 1 September 1990.

Subsection (2) applies the “just and reasonable” test but, in the cases to which it applies - and, Your Honours, if I could use the expression for the moment “in its ordinary application”, that is the post‑September 1990 cases - provision is made for there to be a threshold question, which has to be answered in favour of the applicant, before the procedure can be brought into play.  The threshold question, Your Honours, is whether the requirements of section 60I have been satisfied.

Now, Your Honours, those requirements are two:  first, that at the time referred to in 60I(1)(a) the plaintiff was unaware of one of the matters there referred to.  The second requirement is the application under 60G is made within the time specified by 60I(1)(b).

So that, Your Honours, to put it in summary, in the cases to which section 60G would ordinarily apply, the just and reasonable test is to be applied, but the knowledge and time qualifications of section 60I have to be satisfied.

Your Honours, I use the expression, the ordinary operation of section 60G, and that derives from the fact that as Your Honours will see, if I could go back to section 60F, section 60F draws a distinction between two classes of case; that is, those where the cause of action accrues on or after 1 September 1990, and those where the cause of action had accrued before that date.  In the former class the provisions of Subdivision 3, including section 60I, apply of their own force.  In the latter class of case, as the words in parenthesis in the second sentence of section 60F make apparent, the procedure applies by the operation of Schedule 5.  But, Your Honours, the procedure to which reference is made in section 60F is the procedure for the further discretionary extension of limitation periods, that is, the procedure referred to in section 60G.

In the first class of case, that is the post September 1990 cases, it applies where the plaintiff was unaware, et cetera; that is, the reference is to section 60I.  In the second, that is the pre-1990 class of cases, it is available where, as the provision says, Schedule 5 makes it available.

TOOHEY J:   Well yes, so long as you read “procedure” in a way that excludes section 60I, I suppose.

MR JACKSON:   Of course, Your Honours, yes.  But, Your Honour, that is what I am seeking to submit, that if one looks at section 60F and says, what is the procedure, the procedure is that it is that, in our submission, referred to by section 60G(2) where there is a reference to an application for an order; there is a reference to the procedures for the hearing of persons and there is procedure for the type of order that is to be made.  Those are the fundamental elements of the procedure.  And, if one looks at the words of section 60F, it speaks of ”a procedure for a further discretionary extension of limitation periods”.  Then it goes on to say first, “where the plaintiff was unaware” et cetera, that takes you to section 60I, then it goes on to say, “This procedure”, which, in our submission, means section 60G(2) “is available.....also (by the operation of Schedule 5)”.

Now, Your Honours, if I could go then to the schedule at page 48, what Your Honours will see is that clause 4(1) to which I went before gives that additional operation.  It indicates the causes of action.  In clause 4(4) it says that an order under 60G may be made in one of the two times there referred to.  The first is that period of years referred to in 60I(1)(b) at page 38, the second is the shortly stated period of three years.  The provision does not pick up section 60I in toto, it picks up only the time provision there referred to.

Of course, to satisfy that time requirement it would be necessary to show the elements of knowledge that are referred to in 60I(1)(a) and if one is able to do that one can apply at any time years after 1 September 1990, years after 1 September 1993.  Indeed, there will be some cases where the time within which such an application might have been made would expire before the period of three years referred to in 4(4)(b), but one might think that perhaps they are likely to be at least not the majority of cases.

Your Honours, on the other hand, we would submit, what clause 4(4)(b) does is to give a once and for all opportunity to bring any pre‑September 1990 cause of action within that period of three years without having to satisfy any of the tests referred to in 60I provided that - and, Your Honours, one of the matters that would be taken into account in determining whether it was just and reasonable would be the time that had elapsed and various other matters that one might think in the ordinary course of events would be germane to the resolution of that question.  Now, Your Honours, the ‑ ‑ ‑

TOOHEY J:   Just before you go on, Mr Jackson, I am just having a bit of difficulty with this argument that turns upon the use of the word “procedure”.  You took us to section 60F, and the references in that section to procedure and being available pre‑September 1990 cases and post‑September 1990 cases.  Is the argument that so far as post‑September 1990 cases are concerned, procedure embraces section 60G(2) and section 60I?

MR JACKSON:   Yes, Your Honour.

TOOHEY J:   But that in the case of pre-September 1990 cases, procedure is to be read as referable only to section 60G(2) and not section 60I?

MR JACKSON:   Yes, Your Honour.  Could I indicate why I put it that way?

TOOHEY J:   I was going to ask you why?

MR JACKSON:   I answered Your Honour, yes, but it is, “yes” with a qualification, in a sense.  The procedure, in our submission, in both cases is section 60G(2).  That is what is meant by the term “procedure”.  But what the content of the procedure is and what the matters attendant upon the procedure are, differs in the two cases. 

The reason why section 60I is relevant in the cases which are the post-September 1990 cases, is because of the fact that section 60F - and perhaps this is its substantive operation so far as it has one - it indicates that it is to apply in the post‑September 1990 cases where the plaintiff was unaware of the fact, et cetera.  That is the thing that brings 60I into play.  But when one comes to the pre‑September 1990 cases, what Your Honours will see is that the procedure comes into play by the operation of Schedule 5, which does not contain any such reference to section 60I except in the limited temporal sense referred to in clause 4(4)(b).

TOOHEY J:   Is there anything in Schedule 5 that could be described as procedural?

MR JACKSON:   I suppose it depends on the context in which one is using that term.

TOOHEY J:   One has to give it a context, I suppose, because the argument focuses very much upon the word “procedure” in Subdivision 3.

MR JACKSON:   Your Honour, if I could put it this way:  I do not know that, with respect, the way we would put it, it does focus upon the term.  What we are seeking to do is to identify what is the procedure, in a sense.  What we would submit - if I could perhaps just go back a little and then come to the schedule - is that 60G(2) is the provision that identifies the procedure.  The terms of section 60F indicate the two ways in which that procedure comes into play.  One of them is the part, “the fact, nature, extent” and so on.  That inevitably takes one to 60I and, of course, primarily the provision is speaking about the 1 September 1990 cases, because that appears from the first clause of the second sentence of 60F.  It is only by the operation of Schedule 5 that it has any application to pre‑September cases, and then from there one goes to Schedule 5, and Your Honours will see then that if one goes to Schedule 5 and to clause 4 to seek to see what it applies and how it applies, it says in 4(1) that section 60G also applies to these causes of action.  Then, in section 60(4) - - -

DAWSON J:   It does not, it says:

The court may make an order under section 60G ‑ ‑ -

MR JACKSON:   I am sorry, Your Honour, I was looking at 4(1) when I said that.

DAWSON J:   I am looking at the schedule.

MR JACKSON:   I am sorry.  What I was doing was quoting 4(1), and I think Your Honour was looking at ‑ ‑ ‑

DAWSON J: Subclause (4), which speaks of making an order under section 60G, which is the genesis of the - and when you go to section 60I it says a court may not make an order under 60G unless these matters are satisfied.

MR JACKSON:   That is where it becomes a question of what is intended by the expressions in section 60F.  I suppose I could put it this way, what is the operation of section 60F, what is it intended ‑ ‑ ‑

DAWSON J:   It really does not have anything to do with section 60F.  If you are making an order under section 60G then section 60I applies.

MR JACKSON:   Could I just say that our submission in relation to that is that the introductory provision of 60F is really indicating that it does have the two operations and, if I could say this, there are really two things.  The first operation is one where it is clear because of the correspondence between the words “fact, nature” and so on, in the first sentence of 60F and the rather similar expressions in 60I that the provisions of 60I apply in the first post‑September 1990 cases.  When one is looking to see what is to be applied in the pre‑September 1990 cases, all that is said relevantly by 60F is that the procedure, which in our submission is 60G(2), applies by the operation of Schedule 5.  When one goes to Schedule 5 ‑ ‑ ‑

DAWSON J:   It says you may make an order in these pre‑September 1990 cases, one may make an order under section 60G.  That is plain enough.  The order is under section 60G, and 60I says one may not make an order under section 60G unless the court is satisfied.

MR JACKSON:   Could I say in relation to that that it is obvious that Schedule 5 is intended to have a specific operation and the specific operation is one which, in our submission, in both clause 4(a) and clause 4(b), does effectively in the former case pick up part only of section 60I by reference to a time, and in the latter case excludes the operation of section 60I.  And, what we would say in relation to that is that specific but limited provision is being made by the terms of the schedule and that is the ‑ ‑ ‑

DAWSON J:   Because all is not lost if section 60I applies, not in your case.

MR JACKSON:   Not in the particular case, Your Honour.

DAWSON J:   In one sense it assists you because it may exclude section 60F.

MR JACKSON:   Could I just say this, that in the first instance, we would say that the courts below were wrong in treating 60I and 60F as not being relevantly synonymous once one gets past the particular point we are talking about.  If that is so then I would accept what Your Honour is putting to me.  It assists me but it ‑ ‑ ‑

DAWSON J:   You have not got to that yet.

MR JACKSON:   I have not got to that yet, no.  That is the second point I am coming to.

DEANE J:   Mr Jackson, if you be wrong, and section 60I does apply to clause 4(4) cases, does (b) do anything?

MR JACKSON:   Your Honour, it could, but it would have a limited application.  The limited application would be this, that it is possible but there are cases where the cause of action accrued before 1 September 1990, ex hypothesi, but that the time referred to in 60I(1)(b) would have expired before 1 September 1990 or would expire in a period before the expiration of the three years in clause 4(4)(b).  So I would like to be able to say it had no operation but it ‑ ‑ ‑

DEANE J:   I am sorry, I did not follow.  Can you say again what operation it would have?

MR JACKSON:   Yes, Your Honour.  It is possible that there are situations where the time referred to in 60I(1)(b) could expire before 1 September 1993, that being the end of the three year period in clause 4(4)(b).  So in that, perhaps, limited class of cases clause 4(4)(b) would add something. 

McHUGH J:   I just do not follow that, Mr Jackson.

DEANE J:   Is that not this case?

MR JACKSON:   Your Honour, it depends on what assumption one is working on. 

DEANE J:   But if the time in 60I would expire before the three years, would that not mean - I just do not quite follow what you said, I am sorry.

MR JACKSON:   I am sorry, Your Honour.  When one comes to the second argument, what Your Honour puts to me is perfectly correct.  It is in relation to the first argument, namely, that one does not have to look to 60I at all.

DEANE J:   But what I meant to ask you was if 4(4)(b) is limited by reference to 60I, would it have any effective operation?

MR JACKSON:   The answer is no.  I had assumed in answering what Your Honour put to me before that Your Honour was really treating the terms of 4(4)(b) as providing an alternative to the time fixed by 4(4)(a).

TOOHEY J:   Is it possible to read paragraph (b) as simply a self‑contained provision that in those cases where the cause of action accrued before 1 September 1990, then so long as the plaintiff moves before 1 September 1993 section 60I has nothing to say about the matter.

MR JACKSON:   That is our first argument.

DAWSON J:   So that indeed, what ‑ ‑ ‑

TOOHEY J:   It is not quite the way you put it, I thought.

MR JACKSON:   I am sorry, Your Honour.  I thought that was what I was endeavouring to say, that you do not have to worry at all about any part of 60I in cases where one applies during the period of three years referred to in 4(4)(b).

DAWSON J:   So what His Honour the presiding judge was putting to you assists your argument because you can only come to that conclusion if you construe section 60I as not applying.  In other words, if you apply 60I, then 4(4)(b) really has no operation.

MR JACKSON:   That would be true, Your Honour.  It just involves one further question of construction.  To give it an operation, what one would have to say on that assumption would be that all that 4(4)(b) does is to take cases where the time under 60I would have expired before the end of that three year period to 1 September 1993, and in respect of that little group of cases it gives you a bit more time.

DAWSON J:   Precisely, and that is on the basis that section 60I does not apply automatically to section 60G in these circumstances.

MR JACKSON:   Yes.

DAWSON J:   So it assists your argument because you say it does not, and if that were not so, then really 4(4)(b) would have no operation.

DEANE J:   I am still missing something.  Why is not this case within what you have just referred to as “the little group of cases”?

MR JACKSON:   It is, Your Honour, and that is really our second submission.  We say if it is necessary to look to 60I at all we simply fall within the test.

DEANE J:   I am obviously being more dense than usual.  I still do not appreciate why this case does not fall within the little group of cases, regardless of whether it satisfies 60I(1)(a).  I mean, for the purposes of time, which is what we are concerned with, 60I(1)(a), says nothing at all unless 60I(1)(b) applies to 4(4)(b) cases.  I am saying that, but is that absolutely right?

MR JACKSON:   Perhaps I had better answer Your Honour under a misapprehension.  Could I just say this:  if one starts from 4(4)(a), under 4(4)(a) one has to simply identify a time, in our submission, and the time is the time referred to in 60I.  That inevitably takes one back to section 60I(1)(b) because it is the only place where three years is mentioned.

TOOHEY J:   But it is not a time in the sense that it is a date or a period like three years or two years, it is a time which is only identifiable by reference to all those matters that paragraph (a) specifies.

MR JACKSON:   Quite, Your Honour, and that is what I was going to say next, that to identify that time one has to look to the knowledge that is referred to in section 60I(a), so that one does have to look to 60I(a) be able to identify what the time is that is referred to in 4(4)(a).

TOOHEY J:   But why should not one read all this, and by “all this” I really mean paragraph 4 of Schedule 5, as saying that in the limited class of cases - and bearing in mind that we are talking about causes of action that accrued before 1 September 1990 - if you move before September 1993, then you fall within subsection (2).  You simply invoke the power of the court to grant an extension.  If you do not move within that time, then your right to apply is open-ended, so far as time is concerned, so long as you meet the requirements of section 60I.

MR JACKSON:   Indeed, Your Honour.  Your Honour, I would not dissent from that proposition.  The only qualification to it was one I mentioned before and, Your Honour, it is not really a qualification.  All I was seeking to do was answer a question of what work is done by clause 4(4)(b) and one aspect of the work that it is capable of doing is to say, if you have got a case where the time calculated in accordance with section 60I(1)(b) had expired before 1 September 1993.  Now, in that class of case, 4(4)(b) would give you a bit more time than you would have under 4(4)(a).

DAWSON J:   Unless 60I applied to section 60G in those circumstances.

MR JACKSON:   Yes.

DAWSON J:   And if it did, then 4(4)(b) would have no operation?

MR JACKSON:   Well if it did, Your Honour, the way, I suppose, one would be trying to reconcile the two provisions would be to say that instead of the figure of three years referred to in 60I(1)(b), you put in instead 1 September 1990, but the language is tortured a little in doing that.  So we would submit, Your Honours, in a case like this, that the question is whether it was just and reasonable to do it.

If I could turn then, Your Honours, to the cases.  The view that section 60I is dealing prima facie with the ordinary operation appears to have been adopted by the Court of Appeal in James Hardie & Co Pty Ltd v Wootton, (1990) 20 NSWLR 713. Your Honours, the relevant parts - it is a joint judgment of the members of the court - commence at page 717. Your Honours, I was wrong in saying it is a joint judgment. The principal judgment is that of the Chief Justice; the other members agree and add something. At page 717 ‑ ‑ ‑

McHUGH J:   I notice that Justice Meagher was a party to both judgments and he agreed with Justice Clarke’s judgment that his judgment was somewhat surprising in Hardie.

MR JACKSON:   Yes.  Your Honour, I find it hard to comment on that now.  I would be happy to discuss somewhere else with Your Honour other anecdotal matters of a rather similar kind.  If Your Honours look at page 717, the paragraph commences between A and B.  Now, I shall not read it out, but could I invite Your Honours to read the passage from there, going through to the paragraph immediately above G.  The paragraph of particular relevance is that between F and G.  I should say that if Your Honours look then at the next - could I just pause to say two things:  the first is that the thrust of the passage to which I have referred, in our submission, supports the proposition we have been advancing, the first proposition.

Could I take Your Honours then to the reasons for judgment of Mr Justice Kirby at the bottom of page 718 and Mr Justice Meagher on page 719.  Your Honours, I think it right to say that we would not place the reliance upon what was said by the second reading speech in the way it was put by the President, not because of any question of their propriety of reliance upon it, but rather on the fact that it seems a little more Delphic than perhaps what might appear from what His Honour said.

Now, Your Honours, having said that, could I say that the notion that the terms of section 60I were made applicable in any larger way than that contemplated by clause (4)(4)(a) appears to have been rejected specifically at page 717 between letters C and D, and also 717F.

The development of the decisions on these provisions became then, in our submission, a little unusual.  The issue came before the Court of Appeal again in Electricity Commission of New South Wales v Plumb, (1992) 27 NSWLR 364. In that case, Your Honours, the primary judge had held that a plaintiff who had sustained a back injury - and Your Honours, if I could put it this way, a once-and-for-all back injury, not one that developed over time but a back injury in the ordinary way - the primary judge had held that that plaintiff was entitled, by the operation of 4(4)(b) and 60G(2), to an extension of time, although the plaintiff could not have satisfied 60I(1)(a) in terms of time.

That decision was reversed by the Court of Appeal and the Court of Appeal appears to have held two things.  The first was that section 60G did pick up, as it were, the requirements of section 60I(1)(a).  That appears at page 373B, and Your Honours will see the paragraph commencing between B and C where Mr Justice Handley said the decision did not require the court to hold that 60I(1)(a) was not incorporated in 60F, and it said:

What the case decided was that the three year restriction in s 60I(1)(b).....was not picked up by cl 4(4)(b).

TOOHEY J:   Well, you do not have any quarrel with that sentence, do you?

MR JACKSON:   The last one, Your Honour?  No, we do not.

GAUDRON J:   I do not follow how you can say both of those things together.  Can you?  I have lost something, have I?

MR JACKSON:   In B, Your Honour?  Was Your Honour speaking about what I said or the Court of Appeal?

GAUDRON J:   What the Court of Appeal said.

MR JACKSON:   No, Your Honour, that is so. 

DAWSON J:   What that last sentence says is true, but it does not follow with what they have said before.

GAUDRON J:   It cannot stand with what they have said before, can it?

MR JACKSON:   Well, Your Honour, it is difficult to see it really, with respect, yes.  Your Honour, I say that with some, having appeared to resist special leave in that case, but I was not called on.  The special leave was refused by the Court in both the cases to which I have referred.

DAWSON J:   But, that would be on the basis that this was a statutory provision that was of local application.

MR JACKSON:   Yes, something like that, Your Honour, I do not seek to place any reliance upon what the court said in either case.  The second thing that the court did was to say that clause 4 of the schedule applied only to cases of - I hope Your Honours will forgive me for putting it in this way, “latent injury etc” - .  That appears at page 373F and, Your Honours, it said:

Accordingly cl 4 does not apply to all old causes of action but only to those within Subdiv 3, that is cases of “latent injury etc”.

That term “latent injury etc” is the term that does not appear in any of the enacting parts of the Act.  It does appear in the heading to Subdivision 3 on page 36 and, Your Honours, that is the heading to the part or to the subdivision, is part of the Act, unlike the side-note, and it also appears at page 48 in the heading to clause 4:

Existing causes of action for personal injuries may be extended where latent injury etc.

Your Honours, if one looks at section 60F presumably what is meant by the term “latent injury etc” is that it intends to refer to perhaps the matters referred to in the first sentence of section 60F, perhaps the matters referred to in section 60I but if, one would have thought, in our submission, and I say so with respect, that if the better view of Schedule 5 is that it picks up all the potentially relevant provisions of Subdivision 3 one might have thought, with respect, that the provision which would be picked up would be section 60I(1)(a) rather than section 60F which is the introductory provision.

Your Honours, it is clear from the third case to which I will come that what the court was saying in Plumb in the passage at 373F was not that what was picked up by Schedule 5 was section 60I, but that an order could not be made under section 60G as applied by clause 4 unless the case fell within section 60F. I do not think I put that very clearly. What I am pleading to say is this: it does not appear terribly clearly from Plumb’s case, but it does appear from the third case to which I will come, that what really the court was saying in Plumb’s case was that one could not treat clause 4(4)(b) as leaving out of account the provisions of Subdivision 3.  But the provision that was the qualifying provision under 4(4)(b) was not section 60I, but section 60F, and that they are different.

Your Honours, that that is so is apparent from the third decision of the Court of Appeal, which is Thelander v C.D. Townsend (Eng) Pty Ltd (1993) 32 NSWLR 358, and the relevant passage is at page 359, and in particular in letters E to F, and Your Honours will see there the reference in the fourth line to Plumb’s case, and it said:

The decision of this Court in Electricity Commission of New South Wales v Plumb (1992) 27 NSWLR 364 establishes that in the case of a pre-1990 injury such as this, a party seeking an extension of a limitation period must establish that he was “unaware of the fact -

et cetera, and Your Honours will see the reference to section 60F:

the relevant time being -

and so on:

If these threshold requirements are satisfied the applicant must establish that it is “just and reasonable” -

TOOHEY J:   But that obliges the plaintiff in the particular situation to meet section 60(1)(a) and also the sort of general provision in section 60F that there is a latent injury.
MR JACKSON:   Et cetera, Your Honour, yes.

TOOHEY J:   Yes.

MR JACKSON:   Your Honours will see Mr Justice Mahoney, at the bottom of pages 358 and 359, seems to be agreeing.

Your Honours, the point that, in the view of the Court of Appeal, the germane provision is 60F rather than 60I, and that they mean different things, appears expressly in the present case.  That that is so - - -

DAWSON J:   In effect they seem to be bringing section 60F in via section 60I?  I was looking at F on 359 which I find hard to follow.

MR JACKSON:   Yes, Your Honour, that is so because of the words “relevant time” and that “relevant time”, where referred in 60F, they seem to be treating that as a reference to 60I.

DAWSON J:   But 60I does not mean what it says because section 60F is the one that fixes the circumstances which, in turn, fix the period.

MR JACKSON:   Yes.  Your Honour, it all seems to work on the assumption that the introductory - if I can call it that - provision of section 60F itself has some, in the relevant sense, operative effect.

DAWSON J:   So as, in these cases, to displace what section 60I says in this regard.

MR JACKSON:   Yes.

DEANE J:   Mr Jackson, could I just divert you for a little.  Looking at it as a matter of language, one would say clause 4(4) empowers the making of an order under section 60G.  Section 60I says you cannot make an order under section 60G unless these requirements are satisfied, which means, as a matter of ordinary construction, I would have thought prima facie one would say, “Well, therefore, 60I limits the order that can be made under 60G pursuant to 4(4)(b)”.  It seems to me, if it be so, the argument against that is that 4(4)(b) has no operation if you read it as conferring only power to make a section 60G order in the 60I period.  Is it clear, because you seem to be qualifying the answer you gave?  Is it clear that 4(4)(b) does have no operation if the 60G order which it empowers can only be made within the time frame of 60I?

MR JACKSON:   The answer, Your Honour, is this:  what Your Honour put to me is right.  The reason why I have added a qualification in the past is this, that it would be possible to construe the two provisions in a way that did give 4(4)(b) some work to do in addition to the work that would be done pursuant to 4(4)(a).

DAWSON J:   But that is only by reading the time period fixed by 4(4)(b) into, as it were, I, which is a pretty big step.

MR JACKSON:   Yes.  That is the way in which one would do it.  It seems to have been something that attracted the Court of Appeal in the second case to which I referred, in passing, in Plumb.  The passage that deals with that is, I think, page 373, between B and D.  But that is the qualification. 

TOOHEY J:   I notice James Hardie is not referred to in the judgment in Thelander.

MR JACKSON:   No, Your Honour, it is probably safe to say it is, in a sense, removed from the mainstream a little.

TOOHEY J:   Is that because it was distinguished in Electricity Commission v Plumb?

MR JACKSON:   Yes, it is because Plumb, in later decisions - in what are really the two later decisions, seems to have been treated as the dominant case, if I can put it that way.

I was about to move to the present case, and the point that is made clear in the present case is that the requirements that have to be satisfied are those of 60F, not 60I, and that the two are not synonymous.  That appears in a couple of passages I have to take Your Honours to, but if one starts at page 121, and in particular at about line 11, Your Honours will see a reference on that page in a passage which goes through to page 122 about line 12 to James Hardie & Co v Wootten.  Then Your Honours will see a reference to Plumb.

I should say in relation to Wootten and Plumb that although the reasons of the Court of Appeal say that the decisions in each case were not challenged in the proceedings, I think it is right to say the court was applying those decisions without there being any suggestion that they were not open to be challenged in proceedings in this Court, of course. Your Honours will see that what was said then at page 122 about line 6 was there was no onus -

to establish the matters set out in s 60I(1)(a).  On the other hand he was obliged to show that he was “unaware of -

and then the words of section 60F are used.  So what the court there says expressly is that one does not have to show relevantly that the plaintiff was unaware of the connection between the personal injury and the act or omission, but that one does have to show that he was in terms of section 60F unaware of the cause, and the two are treated as separate concepts.

TOOHEY J:   Mr Jackson, what are we to make of the preceding sentence at line 4:

Again both parties accepted that this decision ‑ 

being Plumb -

was correct and it should therefore be applied in the present case.

MR JACKSON:   Your Honour, that has to be read, of course, with what appears on the preceding page at line 21 about Wootten and, in effect, the Court of Appeal was treating the cases, and it is probably fair to say was being invited to treat them on the basis that they were decisions of the Court of Appeal.  The court would in the ordinary course of events apply them and the correctness of them to be resolved by this Court.  No doubt it might have been put more felicititously in the reasons for the Court of Appeal, but Your Honour Justice Toohey will recall that this was one of a number of cases that were dealt with on the application for special leave and this was, in effect, the one selected to be the case in which the issues would be dealt with.

TOOHEY J:   Yes, I do recall that.

MR JACKSON:   My learned friend, Mr Puckeridge was leading on this case; I was in one of the other ones, I think, that was not selected on the day.

Could I then go on to say that the court in this case, after the passage to which I referred, then went on to hold on a number of further occasions that the term “cause” in section 60F was not to be treated as a shorthand expression for the concept which is referred to in section 60I(1)(a)(iii); that is, unaware of the connection between personal injury and the act or omission.  That that is so appears in a passage which commences at page 122, line 13.  It is a long passage going through to line 2 on page 126.

May I invite Your Honours to look first at page 122, commencing at line 13, and Your Honours will see that the question is expressed as being, this is at line 13: 

whether the appellant established that he was unaware of the extent or cause of the injury -

that is using the language of 60F.  Your Honours will then see, about line 17 that the primary judge had noted the argument that cause should be treated as synonymous with, and that is the expression used in section 60I(1)(a)(iii).  The trial judge had rejected that.  That appears at the bottom of page 122.  The top of page 123 Your Honours will see that that argument was raised before the Court of Appeal. 

Then there is a reference to a decision of Mr Justice Badgery-Parker in PD v The Australian Red Cross Society which, in our submission - although the Court of Appeal held differently - correctly sets out the situation in relation to the relationship between 60F and 60I(1)(a)(iii).  I would refer Your Honours in particular to the sentence commencing in the fourth line of that passage. 

If one goes then to page 124, about line 12, Your Honours will see a statement:

there are express references to the applicant’s lack of awareness of the connection between injury and breach of duty. 

That is a reference, as Your Honours will see, from the next line to section 60I.  Then His Honour says between lines 17 to 20, that those express references do not provide support for an extended meaning of cause, cause being the 60F provision.  Then at the bottom of that page, the last three lines:

it is difficult to see why the same phraseology.....was not used in section 60F -

That is expanded on in the first new sentence on page 125.  If one reads the first half of page 125, one comes then to line 15 where it says the differences - that is, between 60F and 60I - deny 60I of any relevant analogical effect.  That is developed throughout that page and then at the bottom of page 125 it is said:

there is no apparent reason why the section -

meaning 60F -

could not have followed a similar form to section 60I.

Now, Your Honours, could we just say in relation to what is said in those passages that it really seems ‑ and I say so with respect - quite odd to treat a provision such as the first sentence of section 60F as intended to convey a notion different from that specified in the substantive provision and, Your Honours, the need to attempt to do so comes about only because of the tension - if I could use that expression - between the judgments in Wootton, on the one hand, and the other two cases to which I have referred.

Your Honours, the second thing is that if it be necessary to look at the words of section 60F, all that they do is to speak of the cause of the injury.  The approach taken in the Court of Appeal was to say simply that “cause” meant no more than exposure to the noise generated by jack hammers.  That that is so appears in two passages:  page 125 line 18 through to page 126 line 2; the second is, the immediately following passage, where the alternative test was applied, and that is 126 line 3 through to 126 line 10. 

Now, Your Honours, this was a case where the allegation was one of a lack of a safe system of work and whether one treats it as being simply a case where one looks at the word “cause” or whether one looks at what we would submit is the more relevant provision once one gets to this point, the terms of 60I(1)(a)(iii), that is “unaware of the connection between the personal injury and the defendants act or omission”, the case could not be dealt with as simply as being one where the cause or the connection between the personal injury or the act or omission could be just treated as knowing that it was caused by the noise of jack hammers, that the earmuffs that he was provided with were inadequate.

Your Honours, some observations dealing with an issue which is somewhat similar are contained in a passage in Your Honour Justice Dawson’s reasons for judgment, with which Justice Brennan agreed, in Do Carmo v Ford Excavations Pty Ltd, (1984) 154 CLR 235, in a passage which commences at page 256. Your Honours, this was a means of knowledge case. Could I just say, the principal issue in the proceedings was whether what was involved was means of knowledge of the facts or means of knowledge of the legal complexion to be attributed to them. The view taken by the majority of the Court, Justice Murphy dissenting, was that knowledge of the facts was sufficient.

There was then a difference of view between Your Honour Justice Deane, on the one hand, and Your Honour Justice Dawson and Justice Brennan agreeing with Your Honour Justice Dawson on the degree of specificity of the relevant facts.  Your Honour Justice Deane said that what had to be known was a slightly more abstracted level, if I could put it that way, than the detail to which Your Honour Justice Dawson referred.

A summary of what was involved in the case, relevantly, is at the bottom of page 255 in the passage commencing, “It is common ground” - that paragraph and the next paragraph.  Then, Your Honours, from there one goes to the passage at page 256 about point 6, the paragraph commencing, “Having formed the conclusion” and, Your Honour, in a passage that goes from there through to page 258 about point 4, deals with what is involved in a case where the contention is that there was not a safe system of work.

Now, Your Honours, if I could just say that by way of introductory observation.  And the evidence that was before the Court in the particular case demonstrated that it was too simplistic a description of the cause of the appellant’s injury just to describe it in the way in which it was described by the Court because the evidence that had been before the court at first instance and on appeal did not just include the evidence that was given by the appellant personally, but it also included the document which, Your Honours will see, commencing at page 21, was a report by Eden Dynamics Pty Ltd, which is a very extensive report dealing with the various matters which contributed to the hearing loss suffered by the appellant.

Your Honours will see the table of contents at page 21.  Could I indicate to Your Honours the main pages that are involved.  The report is divided up into the body of the report together with annexures.  I want to take Your Honours to some parts in the body of it.  There is a summary at page 22, and Your Honours will see in the first two paragraphs his working history after coming to Australia.  Then Your Honours will see a number of matters referred to in the third paragraph: the fact that hearing conservation programmes are well known.  Various actions are referred to including, importantly, the penultimate paragraph: frequent testing of hearing and the proper implementation of a hearing protection programme.

These matters, Your Honours, are developed more fully in the body of the report.  Could I take Your Honours on to page 26 in the passage headed 3.3.1. There is an overview of the situation in relation to his hearing.  Then, Your Honours, page 27, the penultimate paragraph on the page and the paragraph following.  Then the last paragraph on page 28 and the two paragraphs on page 29.

On page 30, Your Honours, the discussion of the various measures available commences.  Could I refer Your Honours particularly to the third and fourth paragraphs on page 30, then to the three paragraphs on page 31 under the heading 4.2 Jackhammers.  On page 32, there commences the discussion on the hearing conservation programme that should have been adopted.  If I could say, Your Honours, if one looks at the second paragraph on page 32, you will see that he refers to all the additions of the Australian standard 1269, from 1976 onward, and also the earlier standards, from 1972.  They all have sections dealing with hearing protection programmes.

TOOHEY J:   You mean programmes that go beyond simply the provision of muffs?

MR JACKSON:   Ear muffs, yes, Your Honour.

TOOHEY J:   Because in the end you would have to go back to the statement of claim, would you not, Mr Jackson?  If, for instance, the negligence alleged was simply a failure to provide ear muffs, it might be difficult then for the appellant to bring himself within subparagraph (3).

MR JACKSON:   If Your Honour looks at page 3 of the appeal book through to page 6, not a lot of particulars have been omitted and everything is covered, to put it shortly.

TOOHEY J:   I put it to you that way because of the statement at page 126 in the judgment of Justice Clarke where he says, “Well, in any event, even if you got to second base, you’d still fail because of the inability of the appellant to show that he was unaware of the connection”, and then he says he concedes that he knew his loss of hearing was caused by the noise of jackhammers and that the ear muffs with which he was provided were inadequate.

MR JACKSON:   That is what we complain about, Your Honour, that approach.

TOOHEY J:   If that were the sole complaint made by the appellant then you might be in difficulty on ground 2.

MR JACKSON:   Quite.

McHUGH J:   I am not sure that you would because at page 100 of the transcript the plaintiff never admitted that he was aware that ear muffs could be provided and that it would have eliminated or reduced the ‑ ‑ ‑

MR JACKSON:   No, Your Honour, that is ‑ ‑ ‑

TOOHEY J:   That is why I put the question in the way that I did.  If the allegation of negligence was a failure to provide and that was the only basis of negligence the appellant could be in some difficulty under that second ground.

MR JACKSON:   It might be, Your Honour, but could I just say that what we would submit is the way in which it was put by the Court of Appeal in that passage at page 126 is really the thing we say in the outline of submissions, is the proposition, I think 2(2) of our submissions, that it really puts it - it is on the second page,  it is 4(b)(ii).

McHUGH J:   So if you rely on, as part of your unsafe system:  failure of the tests of the plaintiff; failure to reduce noise; failure to monitor; failure to provide information.

MR JACKSON:   Yes, indeed, Your Honour.  I think there is a summary of them in a passage I was just about to take Your Honours to in that report which is at page 32, lines 20 to 25.  Your Honours will then see also on page 32 lines 15 to 20, and page 34 lines 5 to 20 - I am sorry, it is really the whole of page 34 and page 35.

DAWSON J:   Yes, I have something else in mind.Unless you qualify 60G by reference to section 60F, then it is open-ended for any sort of injury - - -

MR TOOMEY:   Yes, Your Honour, utterly.

DAWSON J:   - - - for a period of three years.

MR TOOMEY:   No, Your Honour, because if you apply 4(4)(a) - I am sorry, no, that is right, Your Honour.  Yes, for a period of three years, because 4(4)(a), of course, falls within 60I.  Yes, Your Honour is right.

DAWSON J:   Any sort of injury.

MR TOOMEY:   Yes, any sort of injury.

DAWSON J:   Any sort of knowledge.

MR TOOMEY:   And going back as long as you like.  I mean, you can come along and say this happened to me in 1950.

DAWSON J:   That is what I had in mind, that Subsection 3, whatever “latent injury”, et cetera means, seems to be confining in some way. 

MR TOOMEY:   Absolutely, Your Honour.

DAWSON J:   Yes, I see the point.

MR TOOMEY:   And we say that Wootton is clearly wrong when it says merely that once you fall within 4(4)(b) all you have to do is go to section 60G(2) and decide whether it is just and reasonable.

DAWSON J:   Because that is to disregard entirely 60F?

MR TOOMEY:   Absolutely, Your Honour.  And it is to disregard the whole scheme of the division, not only the subdivision.

Your Honours, as to cause, can we just say this:  Do Carmo was dealing with the following clause - it appears at page 31 of the pamphlet print - for the purposes of this subdivision. It is 57(b)(i):

the material facts relating to a cause of action include the following -

(i)  the fact of the occurrence of negligence, nuisance or breach of duty on which the cause of action is founded -

“the fact of the occurrence of negligence, nuisance”, et cetera, “on which the cause of action is founded.”

Your Honours, my learned friend calls Do Carmo in aid to say that 60I(1)(iii) means what Your Honours said in Do Carmo, section 57(1)(b)(v) means, but the words and, indeed, the phrase and, indeed, the context are quite different:  “the fact of the occurrence of negligence, nuisance or breach of duty on which the cause of action is founded” as opposed to “the connection between the personal injury and the defendant’s act or omission”.

We say giving the words in 60I(1)(iii) their normal meaning, they mean that you did not know that what your boss did or did not do was connected with injury to you.  There is no doubt that Mr Dedousis knew all right.  He knew that he was losing his hearing.  In 1974 he became aware that he was losing his hearing.  He knew that he was losing his hearing and he knew that he was not being given any protection for his hearing, or inadequate protection.  That appears from the evidence.

McHUGH J:   He might know inadequate, but the fact that you give an inadequate protection is not the omission that is relied on, and the omission is to provide protection that will eliminate the risk of injury, is it not?

MR TOOMEY:   He knew that they had not done that, Your Honour.

McHUGH J:   Did he?  He has got to know that it is available.  But let me put a strong illustration from the plaintiff’s point of view.  What about failure to test, failure to reduce noise level?

MR TOOMEY:   Yes.  They may not be relevant.  I mean, it is difficult to see how failure to test can be relevant when the plaintiff has deposed that he knew in 1974 that he was losing his hearing.  I mean, a test would only have told him what he already knew.  He had gone away for six years and he had come back ‑ ‑ ‑

McHUGH J:   No, but his argument is that this failure to test at earlier periods of time, no doubt.  If they had had a system of working in which, say, from the 1960s he had been tested at regular intervals then he would have avoided his injury.

MR TOOMEY:   Your Honour, with great respect, there is no evidence of that because there is no evidence that indeed there was any deficit in his hearing until he noticed it in 1974.  He has not got any medical report in evidence which says ‑ ‑ ‑

McHUGH J:   But surely the court is entitled to take judicial notice of the fact that one just does not lose the hearing overnight, it is this constant bombardment that takes place over a period of time.

MR TOOMEY:   Your Honour appears to have a view about this. 

McHUGH J:   No, no.

MR TOOMEY:   The only evidence before the court is that Mr Dedousis says, “I noticed that my hearing was deteriorating between 1974 and 1976”.  There is no evidence that earlier testing would have discovered any deficit, no medical report is on foot to say whether or not he was tested in 1974 or 1976 and whether or not the reduction in hearing then was such that there must have been a reduction in hearing earlier than that.  There is just no such evidence before the court.  So testing, in our respectful submission, is not made out.

DEANE J:   Mr Toomey, must it not at least be this, that if Mr Jackson succeeds on his subsidiary point and persuades us that 60I(1)(a)(iii) is applicable, or that cause in 60F should be given the extended meaning, should the matter not, at worst, from his point of view, go back to the trial judge?

MR TOOMEY:   Yes, Your Honour.

DEANE J:   Because, I mean, the parties were addressing the wrong question on the authority and the trial judge has identified the wrong question.

MR TOOMEY:   I do not want to waste the Court’s time; of course.  If we fail on our first argument which is that you go to section 60G and you look at it in the light of section 60F and you give section 60F only such meaning as it will bear within its confines, if we fail on that, and if Your Honours are against my argument, the argument that I have now been advancing that the evidence is not there, then yes, there would have to be a new hearing.

DEANE J:   Well, what I was really putting to you was the case no doubt was conducted before the trial judge, even though other arguments were put in the context of the then decisions and the judgments of the Court of Appeal do not really address the other question in the way that they would have if it were not been put as a subsidiary question, I would have thought ‑ ‑ ‑

MR TOOMEY:   Except, Your Honour, they did say, Your Honour will remember, at page 126, Mr Justice Clarke said at line 3:

I would reach the same result on the facts of this case even if the test for which the appellant contends should be applied.

DEANE J:   The point I was making to you is I would have no doubt that if Justice Clarke thought that that was the critical question he would have addressed the sort of matter that Justice McHugh has been putting to you instead of dismissing the case in a sentence.

MR TOOMEY:   Yes, I must say, Your Honours, that had they not been governed as they thought they were by Wootton and Plumb, there is no doubt Their Honours would have considered it at a very much greater length than they did.  Your Honours, can I say this, that in answer to my learned friend’s first argument, that is, that you go to section 60G only, and contrary to our first argument, which is that it is governed only by section 60F, there is, in our respectful submission, a half-way house, which is that what (4)(a) is going is merely changing the period which is provided by section 60I(1)(b).

DEANE J:   What (4)(b) is doing.

MR TOOMEY:   That is right.  It is not saying you do not apply 60I.  In other words, Wootton is wrong again on that, that what it really is saying is, you can make your application within the period of three years referred to in 60I, if you can bring yourself in that, and if you cannot, you can have 60I because it applies to the whole Subdivision, but with the substituted period during which you can make application, which appears in clause 4(4)(b) rather than in section 60I(1)(b).

McHUGH J:I must say, when I first looked at it it seemed to me that might be the most sensible construction; you have got to do a bit of surgery.

MR TOOMEY:   Well, Your Honour, with respect, that would certainly remove the tensions in the Subdivision and would give it a symmetry which would be easy to apply and if Your Honours are against us on our section 60F only argument, that is what we would say is the proper reading of the Act.

Your Honours, my learned friend did not deal with the matter which  ‑ ‑ ‑

DAWSON J:   But the effect of that would be to add three years, instead of subsection (b), commencing from the 1 September  ‑ ‑ ‑

MR TOOMEY:   It would bring in, Your Honour  ‑ ‑ ‑

DAWSON J:   So that the relevant limitation period under section 60I(1)(a) may have expired  ‑ ‑ ‑

MR TOOMEY:   1(b), Your Honour.

DAWSON J:   No, 1(a) which refers to relevant limitation period, that relevant limitation period may have expired many years before, but if at that time the person was not aware of these matters, he then, nevertheless, has three years from 1 September 1990.

MR TOOMEY:   That is right.

MR TOOMEY:   As I say, Your Honour, that would seem to us to give a symmetry to the Act and it would make it ‑ really one could see what it was doing and why it was doing it, and it would be easy to apply.

Your Honours, my learned friend did not address any arguments on the question raised in his amended notice of appeal as to when the relevant period of time should be and I do not intend to either.  May it please Your Honours.

DEANE J:   Thank you, Mr Toomey.  Yes, Mr Jackson.

MR JACKSON:   Your Honours, the first thing I would seek to say is this: from the surgery conducted the patient is not well.  In relation to that, it does bring about a rather curious result because as Your Honour Justice Dawson said, the relevant time under (a) might have expired a long time ago, yet three years are given.  It does not seem a particularly satisfactory reason for adopting that compromise conclusion.

It is right to say, on our submissions, that any type of cause of action, whether one that might be described as falling within the opening words of 60F or 60I, comes within our first proposition.  We accept that entirely.  It does not matter when the cause of action arose in the first place.  But all that is covered by the question of what is just and reasonable, and those are matters to be taken into account by the court in the exercise of the power under section 60G(2).  One of the reasons why no particular limitation is imposed upon the concept “just and reasonable” is because of the potentially large number of circumstances that might have to be taken into account.

Could I also say, though, that in relation to my learned friend’s first submissions dealing with the fact that there is some kind of threshold one has to get by in respect of Subdivisions 1 and 2 and the other part of Subdivision 3, the fact of the matter is that in respect of causes of action which arise after 1 September 1990, then under Subdivision 2 it is possible to obtain the five years extension when all that has to be satisfied is not that there is a threshold, but just that it is just and reasonable for the court to do so.

Your Honours, that is the thing with which the comparison really is to be made.  There is no limitation upon the court’s power, other than the requirement that it be just and reasonable in the case of that subdivision.  A similar situation obtains, in our submission, in relation to Schedule 5 and its application to those causes of action.

Your Honours, could I move then to two further things.  The first is that we do not rely on the Court’s decision in Do Carmo for anything relating to the words of the section then in being and a comparison of it with the present situation.  All we are saying about it is that we rely on it because it shows that in cases involving a safe system of work, if one is looking to identify what is the cause, or if one is looking to see what is the relevant act or omission, the test to be applied is not one that is necessarily answered in the simple or, as we would submit with respect, the simplistic way, in which it was answered by the Court in the particular case.

The second of those two things, Your Honours, is this, and it is the last thing I wish to say, that in relation to the course to be followed by the Court, Your Honours will see at page 29 of the record that - it really starts at page 28 under the heading 3.5, but at page 29 it demonstrates that there was evidence showing the time at which the difficulties with hearing were most likely to have been experienced.

So, Your Honours, what we would submit in relation to the course to be followed by the Court, it would be open to the Court to take the view that if there is a threshold, then the threshold, whichever way it may be expressed, was past, leaving the matter to be decided in the future; just the question whether it be just and reasonable to extend the time.  However, Your Honours, we would understand if the Court took a different view on the course to be followed.

DEANE J:   The first approach might be a rather dangerous approach in view of the current state of the evidence and the findings on 60I(1) against you in the court below.

MR JACKSON:   What Your Honour says is a possible thing and, of course, in the particular rather tragic circumstances the case has to go to another judge, in any event, if it goes on.

DEANE J:   The Court is indebted to counsel and we will reserve the decision in this matter.  Adjourn the Court until tomorrow at 10.15.

AT 12.44 PM THE MATTER WAS ADJOURNED SINE DIE