Djukanovic v Southern Television Corporation Limited

[1988] HCATrans 189

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No All of 1985

B e t w e e n -

SUZANNE DJUKANOVIC

Applicant

and

SOUTHERN TELEVISION CORPORATION

LIMITED

Respondent

Application for special leave

to appeal

MASON CJ

WILSON J

Djukanovic

BRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON FRIDAY, 26 AUGUST 1988, AT 11.43 AM

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Copyright in the High Court of Australia

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MR A. WARDROP:  If Your Honour pleases, these proceedings have cane

before this honourable Court pursuant to a notice of

motion asking for special leave to appeal which is

dated 22 March 1985, on the grounds -

MASON CJ:	Well now, Mr Wardrop, you appear for the applicant
in the application for special leave - - -
MR WARDROP:	That is so.
MASON CJ:	- - - and you appear for the respondent in the

application to dismiss for want of prosecution.

MR WARDROP:	That is right. (instructed by Johnsons)
MASON CJ:	You see, Miss Nelson has an application before the

Court asking for an order that the application for

special leave be dismissed.

MR WARDROP: Is that in the list, in the index?

MASON CJ: Is that not so, Miss Nelson?

MISS E.F. NELSON: That is correct, sir.

MASON CJ:  So you appear for the applicant in that motion and

for the respondent in the application for special

leave to appeal?

MISS NELSON: Quite so, with my friend, MR D.H. GREENWELL.

(instructed by Ward Nolan & Co.

MASON CJ:  Yes. Now, are you content for Mr Wardrop to proceed

first?

MISS NELSON: Certainly, sir.

MASON CJ: Because it seems that the application for dismissal

for want of prosecution, as it were, may be put to

one side for the time being because the applicant

in the special leave application is now before the

Court by counsel and wishes to present the application.

MISS NELSON: Certainly, I think that is appropriate,

Your Honour.

MASON CJ:  Yes, Mr Wardrop.

MR WARDROP:  Yes. In the original notice of motion asking

for special leave, the grounds are set out on page 73
of the transcript: the importance of the issue, the

general matters raised and the interrelationship

between compensation and damages at common law.	Then
on top of that, sir, there is an amended notice of
motion where the grounds - and I only have loose

copies,sir, because this is not in the appeal book - - -

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Djukanovic	MISS NELSON, QC
MASON CJ:	Yes, well, we have the loose copies also.
:t1R WARDROP:	- - - where they say that it will be made upon

the grounds appearing in the affidavit of

Peter Brodie Womersley and the affidavit of

Suzanne Djukanovic who is present in Court.

Of course, those grounds are very comprehensive

indeed and although I am familiar with it all,

having spent the last week on it, I would

respectfully submit that the two grounds which

are of the most concern to me is the one concerning

what is called by His Honour Mr Justice Olsson

in the original iudgment in the Industrial Court,

"double-dipping," and to me that is a question of

fact. The second and important ground is the question

of jurisdiction which is raised in all the judgments.

It.seems to me, suhject to what Your Honours have to say, that that is at the heart of the matter of
the application for special leave to appeal, because

the grounds encumbers much, much more than that and

I might, with respect, point out to Your Honours that some of the language that is on the affidavits and

the grounds is not mine. I think it is - I would not

say intemperate - perhaps emotional is better than.

There are all sorts of things on this - - -

MASON CJ:  You need not concern yourself with that, Mr Wardrop.

:t1R WARDROP:  No, Your Honour. But it is my respectful submission,

sir, that the pleadings - the heart of all these
matters is the judgment of His Honour Mr Justice Birchall

mthe local court of Adelaide, which is not before

Your Honours - it forms part of the original judgment

which is the subject of all these appeals, of

Mr Justice Olsson, the beginning of his remarks,

he refers to it. I particularly submit that I am

entitled to hand up copies of what appears on page 3

of the transcript, in part (a) there, after that little

sum, the last sentence in the first paragraph:

That amount was an apparently indivisible	sum encompassing both special and general
damages, as well as interest.

Well, with the greatest respect, His Honour is wrong.

He does use the word, "apparently," and it seems to

me that, with respect to Mr Justice Olsson, he never

saw this judgment. But then he goes further than that.

In part (c), the second paragraph, the last sentence:

In the meantime the Act compels me to take

cognisance of the Local Court judgment and

its satisfaction by the third party.

In other words, he felt compelled to take this

judgment of the Local Court into account in reaching

the conclusion which he did, which was overruled

by the Full Court of the Industrial Court that was

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Djukanovic

upheld by the Full Court of the Supreme Court and

I ask leave to tender copies of the judgment of

the Local Court which, Your Honour, consists of

26 words, and that is all. Now, you see there,

Your Honours, there is nothing about special and general damages. It just says that there is

judgment for the sum of $16,000 which sum includes

interest plus costs be taxed. That is all it says.

Now, as regards the judgments themselves and

the first point that I have raised, this question
about "double-dipping," I suppose it is necessary

for me to say that I have perused the copies of

the authorities which my learned ,friend, Miss Nelson, has

made reference to, and I have a copy of my own, and

in particular, I was looking for some authority,

because all the judges say, no, _she did not get paia..... Could I rind an authority

which says, yes, somebody has got something twice and

should not have got at all; should I give him this,

because if I do, well then he will get it twice?

Well, I have found the authority and I would respectfully

point out that, if you remember, in all the judgments

the case of CAMERON V ST IVES PASTORAL COMPANY is

mentioned, and in that judgment His Honour Judge Stanley
it was, mentioned PRICE V COMMISSIONER OF HIGHWAYS
and there is just one sentence I want to read to
you which His Honour Dr Bray says - that is this

PRICE V COMMISSIONER OF HIGHWAYS, Your Honours, in

(1968) SASR 329 at 338.	He allocates money, and then
he says:

I must of course add the 31 pounds on to the

240 pounds for the purpose of assessing the

amount of the countercalim since I am going

to allow the defendant only 30% of the total

sum. Otherwise I would be reducing his

damages by 70% twice.

And that is the vital part of that because I say,

with respect, that all the judges - and there are	seven of them that have been doing this sum -
cannot see that in fact the applicant has paid back
to Lumleys, who are the insurers of the present respondent, Channel 9, she has paid them back twice and the amount she has paid back is referred to at the very start of - well, not the very start - of
His Honour Justice Olason's judgment in the Industrial Court. At page 3, there is a little sum
at the top where he says:

Weekly payments in respect

period 18/11/80

(date of injury) to 24/7/81	$4,519.36
Section 59 expenses in respect
of that period	$2,014.77

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That is a total of $6534.13. And my respectful

submission is that that amount has, in fact, been

paid twice.

BRENNAN J: Paid twice by whom, to whom?

MR WARDROP:  By the applicant to, in the end, I would think -

well, the second time there is no money. It is

a credit, it is in limbo - as far as I am concerned,

it is in limbo. No money payment has been made. The only money to have changed hands was off the

original judgment whose terms were carried out.

That involved actual payment of cheques. But this

second judgment, nothing; no money changes, there

is no repayment by the applicant to the respondent,

but His Honour has said, where he says,"Well,

all right, I will give her $13,000." That is what

His Honour Judge Olsson,says, "I will give her that.

But she has already been paid the $4519. So, in

effect, she is not going to get it and furthermore

I am going to give the balance of it, I have got to credit it to Lumleys." And they are saying that

when the money did not come from Lumleys, it came
from SGIC Insurance. That is where the damages

were paid from.

Now, Your Honour, I do not want to go into

arithmetic because I think that there are so many

pages of it, I think and I would respectfully ask

Your Honours - to demonstrate to you, because, well,

an association of ideas, I think I can, with this

jug and these glasses. I think that because I was

in Court watching last Monday afternoon, and I
think it was Your Honour Mr Justice Wilson who,

when arguing about charges that had not been found

out by the police but had been confessed to, there

was some discussion between the Bench and the Bar

about the number and Your Honour, if my ears served

me rightly, said something about you did not know

much about arithmetic. Well, that is how I heard it.

it.

I am on the question of double-dip~ing. I

think the confusion arises because it is sound, clear

law that if you get your common law damages pursuant

to section 84 of the WORK.MEN'S COMPENSATION ACT,

you have got to recompense and, of course, I do not

deny that. I do not deny that in the first instance

the applicant did get, as His Honour Judge Olsson

says, the benefit - and his actual words were,

"applied them for her own purposes." That is,, ...

Well, I admit, yes, she got the money and she applied

it and what she spent it on does not matter, but she

was paid that money before any court action of any

sort was taken. You will see on page 3 where

the compensation was paid to 24 July, so she is

actually getting weekly payments and I do not deny

that.	But nothing is started at any court up to
that date.	So she gets her damages, which I

represent. by this amount of water.

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MR WARDROP (continuing):  So, from the date of the action until

July she has had her compensation pursuant to

the Act, no doubt about that. Then on 2 December,

she gets judgment in the local court for common

law damages for $16,000 and, of course, I am

not going into complaints, but she says, "All

this was done without my authority; I knew

nothing about it", and, of course, there is
evidence everywhere that that is so but it is

not before Your Honours and I do not propose

to go into it. But in the amended grounds of

appeal and in her own affidavit you will see

the story of what these various people are

a 11 e g e d to have done or, roore part i cu 1 a r 1 y , not

to have done.

MASON CJ:	Mr Wardrop, do you want to advance an argument
to us about section 84(b)?

MR WARDROP: That is the jurisdictional point, is it not,

Your Honour?

MASON CJ:	Yes, it is. On one view that is a critical
element in the case as to how far paragraph (b)
extends. If you look at page 83 of the application
book.

MR WARDROP: Yes, that is right. That is the jurisdictional

point. But, if Your Honour would just allow

me another sixty seconds - - -

MASON CJ: Certainly.

MR WARDROP:  So, what I say is before any court action

whatsoever, she had got the $65OO-odd. Then

she comes before His Honour Judge Birchall on a common law damages claim and he says, "Yes, I'll give you that" - and, this is on the transcript,

Mr Nosworthy of Messrs Ross, McCarthy & Nosworthy,

who appeared for the defendant in that case,

the ar~angements were made with the applicant's

solicitor to repay to the insurance- company not

Lunley's, not Channel Nine's insurance company,

to repay that $6534.

No one growls about that. She has had

it and she pays it back in hard cash - which

a local court has given her. Now, she has drunk

this and she gives it back, and that is undisputable

as far as I am concerned. Then, she comes before

His Honour Mr Justice Olsson, the learned President

of the Industrial Court. And then he says, "You are

asking for an order for $17,000. I am going

to give you something but I am not going to
give you $17,000; I am only going to give you
$13,252.80 and I am not going to give you that

because the difference between the $17,OOO-odd

and the $13,OOO-odd - I am going to give it

back to your insurers", so - - -

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BRENNAN J: Is that a fair statement, Mr Wardrop?

Is not the $13,000 the calculation of the compensation between the dates in your client's

form 2, namely the compensation from 28 April 1981 to 7 January 1983 and the $17,000 is a calculation from the date of the accident, 18 November 1980

to 7 January 1983.

MR WARDROP:  That is right but, you see, he has encapsulated

in the $13,000 the $4000-odd which appears on

page 3 of the transcript. In that $13,000 he
has encapsulated that and he says, "You have

asked for so much and I say at this point in

but you have got to give back what you have	the judgment that you are entitled to that much
got up until 24 July 1981 before any court action started." And he gives it back when in fact it came from a different insurance company.

So that the end result is that, you see,

he has given away two amounts represented by

those two glasses of water, and she is left

holding the baby - she has got nothing. And

that is my point on this question of double

dipping. It seems to me quite obvious what

happened.

BRENNAN J:  Mr Wardrop, if you look at the bottom of page 3

and the top of page 4, I think you will see

the basis of the calculation of the $13,000.

It does not have anything to do with what was

given back. It is simply a calculation of the

total amount without deduction between two periods;

two dates.

MR WARDROP:	That is right.
BRENNAN J:	The first of those dates is 28 April 1981,

which does not in any way correspond with the

date on which the weekly payments ended, and

the last date is 7 January 1983.

MR WARDROP:  Are you referring to what His Honour calls

the "post period"?

BRENNAN J:  I am referring to the dates which His Honour

used for the purposes of calculating that figure
and those dates, as I understand it, he took

it from your client's form 2.

MR WARDROP:  Your Honour, that might be so but it is my

respectful submission that, first of all, the

28 April should be 24 July, as was referred

to in the transcript of all the various proceedings,

and the second - - -

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BRENNAN J: If that date was selected then the amount would

be less than $13,000.

MR WARDROP:  Yes, I know. Well, on the double-dipping

point it is my respectful submission, and I

trust I have been able to show you that in effect,

what the courts have done after she had got

her money sent through the post in weekly cheques,
which she had paid back - which was taken out

of her common law damages to pay that sum

back to SGIC insurance; then His Honour does

it again. He has encapsulated it out of the

figures even though it refers to a different

period of time, but she had never got that

.....	- out of His Honour Mr President Olsson's
judgment, she did not get a cent.	I know the

figures are quoted but they are all in limbo -

nothing changed hands. She did not get any weekly

compensation in what His Honour calls "the post" -

the last payment of compensation she got was

on 24 July 1981 and after that: nothing. Neither

by way of common law damages - sne got $4000

out of the $16,000 - that is all she got out

of any of the cases thatare referred to in the transcript.

I think when you are asking that question, if

Your Honour pleases, Mr Justice Brennan, you

might have had in the back of your mind that

in fact she had been paid it just like she was

paid the earlier period, but she was not.

She was not paid a cent.

My submission is that if she has not been

paid a cent, what on earth is His Honour

Mr President Olsson doing in saying, "I'll give

it back. I'll give credit", because she has
got nothing to give back. That have taken her

to the cleaners already. That is my submission

on this double dipping. I can only, with that

point, leave it at that and I say that on the

double-dipping question which is in the notice

of asking for special leave, the insurers~ in

SGIC; the second glass they got from His Honour	the first glass they got cash, by cheque from
Mr Justice Olsson when she had got nothing, she had already paid it and she is left holding the bag. And that is my submission on that
point and I do not think, with respect, that there is flaw in it.

There are hundreds of pages of evidence

about it; I am at some sort of advantage from

Your Honours because you have only got about

a tenth to make an estimation - I have got the
rest. There are at least six other judgments

which are not on this appeal book which was,

apparently, professionally prepared, but it

is obvious as you read it that it is disjointed;

it is not properly put together.

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Djukanovic
BRENNAN J: Mr Wardrop, could I just ask you this question:

did your client, in the first instance, receive -

and I am leaving aside medical payments -

compensation payments amounting to $4519?

MR WARDROP:  Yes, her weekly payments had - - -

BRENNAN J: The weekly payments. That is the first thing.

MR WARDROP:	Up until 24 July 1981.
BRENNAN J:	Right.  Then did she receive $9465 after the

trial - after the case in - - -

MR WARDROP:	No, she did not.
BRENNAN J:	Did she not?
MR WARDROP:	No.

BRENNAN J: According to the judgments below she did.

She got that because that was $16,000 less the

amount that was paid over to the employer.

MR WARDROP:  You see, Your Honour, I try to be fair. I

do not want to denigrate anybody. Her solicitor

at the time - there were actions in the supreme

court against him. Yes, he was sent a che~ue

for the $9000 - the difference between the $16,000, SGIC

gets $6500-odd, her solicitor gets $9500.

BRENNAN J:  $9500.

MR WARDROP:  That is right. When everybody is paid, when

everybody has got their greedy little hands

in the till, she finishes up with $4000.

BRENNAN J:	Do you mean the solicitor paid her $4000?
MR WARDROP:	That is right.

BRENNAN J:	But the solicitor on her behalf received $9500?
MR WARDROP:	That is right.

BRENNAN J: Then after that stage the judgment as it now

stands in the courts below gives her $17,772

less those amounts earlier paid, is that right?

MR WARDROP:	That is right.
BRENNAN J:	And $17,772 is the amount of compensation from
18 November 1980 up until the date of 7 January 1983
which was the termination of her application for compensation?

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MR WARDROP:	That is right.	But when Your Honour uses the

word "gives", it assumedly gives. She got nothing.

And that is that point. Now, unless there is

anything further which Your Honours want to

ask me about the double-dipping aspect, which

is one of the grounds for special leave, I propose

to leave it there unless Your Honours have

anything else to ask me about it?

MASON CJ:	You had better proceed to the second ground,
Mr Wardrop.
MR WARDROP:	That is the jurisdictional point and in the

judgment of His Honour Mr Justice Olsson -

there is one thing, sir, pardon me, otherwise

I feel I must mention. It seems to me that

on the whole of the appeal book there is an

obvious ground of appeal which has not been

pleaded at all, either in the original motion

or in the amended motion, and that is simply

this, Your Honours: that, inherent in everything

that is in the appeal book there is a ground

of appeal, surely, on the difference of judicial

opinion. You have Judge Olsson saying one thing,

the Full Industrial Bench comprising Judge Allan,

Judge Russell and Judge Lee, says "Judge Olsson, you are wrong". So it comes up to the Supreme

Court of South Australia, three judges heard

it; His Honour the Chief Justice Justice King, Justice Matheson and Justice Bollen , they say to

the Full Industrial Court, "You are wrong,

Mr President Olsson was right". It seems to

me self evident that that is a ground of appeal

that Your Honours, with respect, would have

a duty to resolve that difference of opinion.

You have three for and four against - that is what it boils down to.

(Continued on page 11)

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MR WARDROP· (continuing):  The cases that my learned friend

has cited in the list of authorities, she has
not mentioned the one which is mentioned in

all the judgments and which I regard as a vital

one, CAMERON V ST IVES PASTORAL COMPANY PTY

LIMITED, (1973) 40 SAIR 1140, volume 2. As

I have mentioned, in that case, one I have already cited, PRICE V COM:MISSIONER FOR HIGHWAYS - they cite PRICE V COM:MISSIONER FOR HIGHWAYS and,

again, tying in with the jurisdictional point

in CAMERON V ST IVES PASTORAL COMPANY LTD, right

at the end, His Honour Judge Stanley talks about

is not in .the list which my learned friend

this problem and about it could be that the case

has put in her list but CAMERON V ST IVES
is mentioned in all the judgments and

His Honour Mr Justice Bollen quotes His Honour

Mr Justice Johnston in another case where

His Honour Mr Justice Johnston has said the

ST IVES case is wrongly decided.

The ST IVES case brings up all the things

we are bringing up here.	They quote
section 84 and all the rest of it.	The jurisdictional

point is tied up with section 84 and section 21

of the South Australian WORKMENS COMPENSATION

ACT. In the judgment from the ST IVES PASTORAL

COMPANY, where they quote PRICE V COM:MISSIONER

FOR HIGHWAYS and, in particular, Justice Johnston's

arguments about section 1, he says, and I agree,

that section 21, when it talks about ancillary

matters, the only ancillary matters that are

brought up must be strictly relateable to amount

and liability. He uses the word "strictly 11 ,

and then right at the end of it he says:

And for those reasons I think that

CAMERON V ST IVES is wrongly decided.

Of course, these matters of jurisdiction are

of considerable interest to Their Honours who,

in their reasons for judgment in the Full Industrial

Court and, of course, the jurisdictional question

was also brought up in the case of the STATE

OF SOUTH AUSTRALIA V PUBLIC TRUSTEE which my

learned friend has put in her list of authorities.

It is interesting to note, Your Honours,

that the judgment in PUBLIC TRUSTEE was delivered
on 2 February 1984. Exactly five weeks and

a day late:; on 9 March 1984, this judgment in

the Full Industrial Court was delivered but

what is not on the appeal book transfer, as

far as I remember, His Honour Judge Allan, who

was acting president at that time, invited counsel

to come in and argue about PUBLIC TRUSTEE before

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Djukanovic

he delivered his judgment on 9 March. So the

point that I wish to make is, and he says it

here:

the appeal was called on again to give
the parties the opportunity of making

submissions in relation thereto.

So that when the Full Industrial Court had given

its judgment they had read PUBLIC TRUSTEE's

case and they had said to my learned friends,

Mr Doyle and somebody else, "Well, come in and

tell us what you think. The decision in the

PUBLIC TRUSTEE's case should have, in our decision

in this present case - the applicants" - he

gave them that opportunity and he says so in

his judgment.

Then he goes on to say that - I had better

have a loook to see if his judgment is in the

appeal book. Yes, it is, at page 51. The decision

published on 9 March by the Full Industrial appeal books. After reciting section 84 in

full, he starts off, and this appears on page 5

at the top:

Dr Doyle, for the appellant, submitted
that the recent decision of the Full Supreme

Court in THE STATE OF SOUTH AUSTRALIA V

PUBLIC TRUSTEE delivered on 2 February 1984 -

that is five weeks and one day before he was

delivering this judgment -

was decisive of the jurisdiction point

and meant that the learned trial Judge

lacked the necessary jurisdiction to make

the order by way of set-off.	I accept
that submission.	By way of explanation,

I think that I should say that, at the

time of the hearing of the appeal, judgment

in the PUBLIC TRUSTEE case had not been

delivered and that, when it was subsequently

delivered, the appeal was called on again
to give the parties the opportunity of

making submissions in relation thereto.

As it happened, in the PUBLIC TRUSTEE case,

the Full Supreme Court considered matters

raised by Mr Doyle at the earlier hearing

of the appeal and, Mr Doyle seemed content

to rely on the judgment in that case.

With respect to Their Honours, Mr Doyle was

not. He was not content because there are about

20 pages in the transcript where they were called

on to argue - there are 20 pages of argument

by Mr Doyle. He was not content at all because

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his point was this, if I can put it in a nutshell: he says that so far as section 84(b) is concerned, and I adopt this, and to give you a further

insight on what I am saying, Mr Justice Bollen
in the Full Supreme Court says the two cases

are totally different. PUBLIC TRUSTEE and

DJUKANOVIC V CHANNEL NINE are totally different

cases again, but if you look carefully,

with respect, at both judgments, you will find

that Mr Doyle's argument was that in the PUBLIC

TRUSTEE case you have injury, compensation,

damages and recovery - that is in the PUBLIC

TRUSTEE case. The only difference is that in

this case you have injury, damages, compensation,

recovery. And that is the only difference,

in my respectful submission.

This is where I say the conflict of judicial

findings, in my view, constitutes an inherent

ground of appeal on the pleadings in this book

because this is the point where, in the PUBLIC

TRUSTEE case, as I read it, the supreme court

says you have not got jurisdiction, but in this

case the Industrial Court says we have. That

is between the two paths of recovery: the common

law damages and the compensation._ '.llle only difference between

PUBLIC TRUSTEE is compensation, damages. In this case it is

damages, con:pensation - that is the only difference and in my respectful view that is the heart of the jurisdictional point. In one case superior courts sey, "You haven't got

jurisdiction", in this case they say, "You've

got jurisdiction", and I think that is the

jurisdictional point which Your Honours have

to decide and I adopt the reasons in the first

notice of motion at the end of Mr White's long

affidavit when he says:

The matter gives rise to an important issue in South Australia -

well it does. Half the legal profession has
been on this before me;	I only knew about it

last Friday. And further, on the jurisdictional

point, down at the bottom of that page, it says:

At trial the defendant submitted that the

local court did not have jurisdiction -

and that is so.

BRENNAN J:  Mr Wardrop, the only problem here is which

court has the jurisdiction to enforce the obligation

to repay, is that right?

MR WARDROP. That is right, I would think, yes, and give the true amount.

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BRENNAN J: Well, that is another problem. But if that

is the only problem, should special leave be

granted to decide which court should determine

what the amount should be?

MR WARDROP:  I think that special leave should be granted,

Your Honour, for one fundamental reason, which

is fundamental to us all, and that is in the

interests of justice because this poor little

girl, 18 years old, she has been kicked and

hounded to death all around Adelaide. That

is my submission and no one has been sympathetic.

Your Honours, with respect, are the ultimate

judicial authority in Australia;	who else can
decide it?	I would not agree that you should

say, "Throw it back to one of these in the courts below". Our plea, from the heart, I

think, is can Your Honours finish this once

and for all? It has gone on too long; there

is too much heartbreak. It is, in my view,

the worst case of injustice I have ever heard

of or ever read about because they are

throwing all these amounts around in their judgments -

she got 4000 nicker, that is all. And I think,

with respect, if there is Queen's justice in

the kingdom of Australia, that she has the right -

she has got a substantive right - to see that

right is done and procedure is cast aside.

MASON CJ:	I do not think you need labour that point,
Mr Wardrop.

MR WARDROP:  No. I do not know whether you want to hear

any more about jurisdiction or not except that

on page 6 the Full Court of the Industrial Court

said:

the Full Supreme Court holding that the

issues raised by the pleadings in the action

were not within the jurisdiction of the

Industrial Court and were within the

jurisdiction of the Local Court.

And all those things I have been saying about

section 21 appear, quoting with approval

His Honour Mr Justice Johnston's remark and

I particularly rely on what Mr Justice Johnston

has to say about all this because before

His Honour had the great distinction of being

raised to the Bench in South Australia, he was

the top man in South Australia regarding industrial

matters. If you had something hard you took

it down to Johnston, no one else - as His Honour

then was.

MASON CJ:	I think we are getting a little remote from
the application for special leave. Do you want to
say anything more about this jurisdiction question,
Mr Waldrop?

14 MR WARDROP 26 / 8 / 'c'd

AIT9/4/SDL Djukanovic

MR WARDROP:  Only what the Full Industrial Court had to say

on page 8 of the transcript:

I think, then, that the learned trial

Judge did not have the jurisdiction to

make that part of his order whereby he

gave credit to the respondent for the sum

of $9,465.87.

And then the whole of the next paragraph is mostly taken up about the fundamental mistake

in this case, this business about double dipping,

because His Honour Judge Allan says that she

is misguided, that it is a fallacy that she

got it. It begins:

The fallacy of the argument becomes apparent

in its recounting.

(Continued on page 16)

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Djukanovic

MR WARDROP (continuing):  I just want to stress again what

was said by His Honour Mr Justice Johnston in

the case of ADELAIDE ASSEMBLERS LTD V KUTOS AND

FREEWAY MOTORS LTD, (1974) 9 SASR, at page 102.

As a matter of interest there is a case cited by

my learned friend in her list of authorities

which is in the same volume. She cited NELSON

V SWEETMAN AND JULIEAN HAIR STYLISTS, that is

in the same book at page 125, and KUTOS' case

is at page 102.

But I am interested in what His Honour

Mr Justice Johnston had to say in KUTOS' case

about section 21 which is tied up with section 84.

And he says about KUTOS's case:

In so far as this authority has any signficance

for the present question, it appears to

me to indicate ancillary matters in section

21 are limited to questions which are strictly

relating to the liability to pay and the

amount of compensation to be paid under

the Act.

Because, you see, you remember, Your Honours,

His Honour Mr President Olsson gave a much wider ambit to section 21 than His Honour's. His Honour

Judge Olsson seems to be saying , "Well, anything that

has got anything to do with an amount and

liability to pay, that's ancillary." And my

r.oint is that His Honour Judge Johnston said,

'No, that's not right, it's got to strictly·relate."

Once a worker makes a claim for compensation,

the employer pay compensation, then the employer's

right to claim the benefit of section 84 is

absolute.

The payment of the compensation by the employer

is the background to and the limit of the employer's

right to recovery. But, of course, we say that

the employer has gone far beyond that limit.

He is not entitled to what he claimed and what
he got.	And then they mention the CAMERON case,

which is not in the list of authorities but which

I rely on heavily and the PUBLIC TRUSTEE case.

And then the heart of the judgment is:

I think then that the learned trial judge did not have a jurisdiction to make that

part of his order whereby he gave credit

to the respondent for the sum of $9465.87.

He says that on page 8 in the first full paragraph.

If Your Honours please, I would think, unless

with respect you have anything else you wish

AlTl0/1/ND	16	26/8/88
Djukanovic

to ask me, that is my case and I ask, with

respect, that special leave be granted to enable

the thing to be argued fully by someone a little

bit younger than I am.

MASON CJ:  Thank you, Mr Wardrop. Miss Nelson, can you

answer the two grounds that have been raised,

very shortly?

MISS NELSON: Yes, Your Honour. Quite simply, in relation

to the double-dipping point, what happened was

that the accident occurred on the way to work

in 1980. The applicant was off work for some

time and received weekly payments of compensation.

She then took action for common law damages in

the district court and the consent judgment for

$16,000 was entered in that jurisdiction, from

which she was obliged to repay the total of the
weekly compensation already received.

And as I understand it, no complaint is made

about that. That was in December 1981.

Thereafter, she took proceedings for further

payments of weekly compensation claiming a

continuing incapacity up to mid-1983 which for

some period was total and for some period was

partial but deemed total. That was the judgment

of - that culminated in the judgment of

His Honour Mr Justice Olsson, as he then was,

who, as Your Honour Justice Brennan has pointed

out, totalled up the amounts of weekly compensation

claimed to some $13,000.

I do not want to add confusion by referring

to the figures. That related to a period for

which she had not been paid compensation and

is not to be confused with the period for which

she had been paid compensation and for which

that amount had been deducted from her common

law damages. Then, having totalled up the amount

of compensation to which she was entitled, he

then proceeded to say that she could be paid

from the judgment an amount which took into account

the balance already received by her by way of

common law damages and he did so in pursuance

of section 84(b).

I cannot comment on what moneys the applicant

actually physically received but there is no

dispute, as I understand it, that the amounts
ordered by the court to be paid were paid to

her solicitors from time to time on her behalf.

And that is what I say about that point. There

really is just nothing in it.

On the jurisdictional point, I commend to

Your Honours, the analysis of the situation by

AlTl0/2/ND	17	MISS NELSON, QC 26/8/88
Djukanovic

His Honour Mr Justice Bollen who wrote the

leading judgment of the Full Court of the Supreme

Court and that begins with a discussion at

page 83 of the application book and continues

up to and includes page 91. He there sets out

the relevant legislation, being sections 21 and

84 of the WORKER~ COMPENSATION ACT, and, 1

interpolate at this stage that, of course,

changes of legislation in this State have made

that Act redundant except in relation to injuries

that occurred prior to 1987, 1 think.

He then wrestled with the problem that

Your Honour Justice Brennan put forward arguendo

to my learned friend of, "Is this really just

an argument about which court should enforce

the repayment by the worker of amounts already

received by her?" and concluded that because

there were still matters ancillary to the claim
for compensation that the Industrial Court was

thereby still seized of jurisdiction to make

that order.

He distinguished the STATE OF SOUTH AUSTRALIA

V PUBLIC TRUSTEE by saying that in that case
all of the matters relating to liability to pay
had been finalized before action under section 84

came into play, which was not the position in

the case at bar. I say, in brief, that there

is absolutely no doubt and, indeed, I think

Mr Wardrop conceded it, thatthismoney was entitled

to be deducted. The real argument is whether

the Industrial Court was the appropriate court

seized of the jurisdiction to do that and

Mr Justice Bollen has covered that adequately,

in my submission, and this is not a case that

properly should be brought before Your Honours

to determine on appeal.

MASON CJ:  Thank you, Miss Nelson. Do you wish to reply,

Mr Wardrop?

MR WARDROP:  Only one ..... my· learned friend when she

told Your Honours that Mr Justice Bollen toyed

with what had to be paid out and then referred

to section 21. And that is part of our argument

about jurisdiction, that Mr Justice Olsson thought

that practically everything was ancillary as

far as section 21 is concerned, but

Mr Justice Johnston in the other case I cited	says, "It must strictly refer to section 21 11 •
That is all I have got to say.

MASON CJ:  Thank you, Mr Wardrop. The Court will announce

its decision in this matter at 2 o'clock. In

the meantime the Court will adjourn.

AT 12.44 LUNCHEON ADJOURNMENT

AlTl0/3/ND	18	MISS NELSON, QC 26/8/88
Djukanovic

UPON RESUMING AT 1.58 PM:

MASON CJ:  Having given careful consideration to the

arguments presented to the Court by Mr Wardrop

for the applicant, the Court has none the less

come to the conclusion that the decision of the

Full Court of the Supreme Court is correct

in the circumstances.The application for special

leave to appeal is refused.

MISS NELSON:	I seek an order as to costs.
MASON CJ:	Do you say anything about that, Mr Wardrop?
MR WARDROP:	No, I cannot oppose that, if Your Honour

pleases.

MASON CJ:  The application is refused, with costs.

AT 2.00 PM THE MATTER WAS pJ)JOURNED SINE DIE

AlTlO/4/ND	19	26/8/88
Djukanovic