Dossett v TKJ Nominees
[2002] HCATrans 432
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Perth No P27 of 2001
B e t w e e n -
BRADLEY JOHN DOSSETT
Applicant
and
TKJ NOMINEES PTY LTD
Respondent
Application for special leave to appeal
GAUDRON J
GUMMOW J
TRANSCRIPT OF PROCEEDINGS
AT PERTH ON FRIDAY, 25 OCTOBER 2002, AT 9.32 AM
Copyright in the High Court of Australia
MR B.L. NUGAWELA: May it please the Court, I appear for the applicant. (instructed by Andrew Read & Associates)
MR M.W. ODES, QC: May it please the Court, I appear with my learned friend, MR G.W. NUTT, for the respondent. (instructed by Jackson McDonald)
GAUDRON J: Yes, thank you, Mr Nugawela.
MR NUGAWELA: Can I start by going to the relevant previous enactment, your Honours. The relevant previous enactment is the former section 93D of the Workers’ Compensation and Rehabilitation Act as it existed prior to 5 October 1999.
GUMMOW J: That is set out on page 3 of the application book.
MR NUGAWELA: Thank you, your Honour Justice Gummow. Just looking at the features of that section, subsection (4) provides that leave to commence an action for common law damages must be obtained before commencing such an action and subsection (5) provides that leave must be given, in mandatory terms, if one of the disjunctive criteria is satisfied. The relevant criterion here is subsection (c):
the Court determines that the worker is likely to have a future pecuniary loss resulting from the disability of an amount that is at least equal to the prescribed amount.
There are four features to this section. The first is that the application for leave is by way of an interlocutory procedure commenced by originating summons. The second is that no viva voce evidence is adduced on the hearing of that application and if there is any factual conflict on affidavit materials, the conflict is resolved in favour of the worker.
The third feature relates to the meaning of the word “likely” in subsection (5)(c), and “likely” has been authoritatively held by numerous Full Court decisions in our State to mean in this context that which is not far‑fetched or remote and if a worker shows, at this interlocutory level, that he or she is likely to exceed the future pecuniary loss amount if the matter proceeds to trial, leave must be given. It is mandatory. There is no discretion to withhold the grant of leave, and those are the four essential features.
Your Honours, the applicant applied for leave under the regime that existed pursuant to this section. It is apparent, in our respectful submission, that the regime did not create common law rights, but it recognised the existence of pre‑existing common law rights, on the one hand, but the access to the remedy in respect of those common law rights was controlled by a process of quantification, the relevant datum being this concept of future pecuniary loss.
The amending Act on page 5 of the application book between lines 20 and 34 set up a different datum as from 5 October 1999 and essentially it is that workers who want to access common law damages need to show and prove on a balance of probabilities that they have a degree of disability, as that term is defined, of at least 16 per cent. If they have a degree of disability of 30 per cent or more, they are entitled to unlimited damages. But those are essentially the relevant provisions of the legislation under consideration.
Can I turn very quickly to the background decision of the courts below, your Honours. The District Court, that is the learned Commissioner Chaney, decided the application on the basis that the amending Act evinced the contrary intention sufficient to oust the presumption against retrospectivity. That decision was appealed by leave to the Full Court, and one of the grounds of appeal is on page 13 of the application book, ground 1.5, which alleged in the Full Court that the learned Commissioner was wrong in finding such a “contrary intention”. The matter proceeded to the Full Court hearing and at the hearing of the Full Court appeal the respondent’s argument essentially ‑ ‑ ‑
GUMMOW J: Wait a minute, 37(2) – where do we see that?
MR NUGAWELA: Section 37(2), your Honours, is set out in the applicant’s book of authorities under tab 3. There are two books of authorities.
GUMMOW J: Yes.
MR NUGAWELA: It is the first one, the big one.
GUMMOW J: That is a fairly unusual provision, I think.
MR NUGAWELA: It is unique in Australia. There is a close provision in different terms in the Queensland Interpretation Act, but not word for word, your Honour Justice Gummow, but in the result at the hearing of the appeal the respondents ‑ ‑ ‑
GAUDRON J: It was a repeal, it is not just an amendment?
MR NUGAWELA: Yes, it was a repeal and proof of that, your Honour Justice Gaudron, is in the small book of authorities on tab 26.
GAUDRON J: Yes, you need not go to it now.
MR NUGAWELA: On page 22 of that tab. Can I say what happened at the hearing of the oral argument before the Full Court?
GUMMOW J: Wait a minute. So what was Commissioner Chaney’s reasoning then?
MR NUGAWELA: Commissioner Chaney’s reasoning was that the amending Act clearly manifested a contrary intention to oust the presumption ‑ ‑ ‑
GUMMOW J: Because of what provision?
MR NUGAWELA: Because of the transitional provisions.
GUMMOW J: And where do we see the transitional provisions?
MR NUGAWELA: At application book page 5.
GUMMOW J: Yes, it is down the bottom, is it?
MR NUGAWELA: Yes, down the bottom continuing on to page 6.
GAUDRON J: That has to be read then as exhaustive.
MR NUGAWELA: That is how the learned Commissioner read that, your Honour Justice Gaudron, and when the matter came before the Full Court ‑ ‑ ‑
GAUDRON J: Yes.
MR NUGAWELA: Your Honour was poised to say something?
GAUDRON J: Well, why would it not be exhaustive, or do you say that that was just there for more abundant precaution and did not have regard to the terms of 37(1) – it would be (1)(f), would it not?
MR NUGAWELA: Correct, but it also, your Honour, does not have regard to 37(2).
GUMMOW J: Yes.
MR NUGAWELA: Which says that in Western Australia you cannot use a savings provision to infer contrary intention and the Full Court – nine justices of our Supreme Court in Western Australia have held that the amending Act does not evince a contrary intention in the matter of Musgrove; in the matter of Toolan which ‑ ‑ ‑
GUMMOW J: Did they fix on 37(2)?
MR NUGAWELA: Toolan certainly did fix on 37(2). His Honour Justice Barker – and I will take your Honours to ‑ ‑ ‑
GUMMOW J: Did the Full Court in this case deal with 37(2)?
MR NUGAWELA: No, the Full Court accepted the ratio decidendi in Toolan and found effectively that there was no contrary intention in this case before your Honours, but then went on to find that there was insufficient right.
GUMMOW J: Insufficient?
MR NUGAWELA: Right, there was no accrued right.
GUMMOW J: I see.
MR NUGAWELA: So that when this matter got before the Full Court for argument ‑ ‑ ‑
GUMMOW J: What, an insufficient right for 37(1) of the Interpretation Act?
MR NUGAWELA: For 37(1)(c).
GAUDRON J: But you can rely on (b) and (f).
MR NUGAWELA: And also the word “power” in (c). The word “power” in (c) does not appear in the Commonwealth Interpretation Act and it is not just the mere power to take advantage of an enactment in a Ho Po Sang sense, so the specific grounds of appeal to the Full Court agitated all these complaints, if you like, your Honours, that the learned Commissioner made and in fairness to the learned Commissioner he felt that he did not need to deal with the substantive operation of 37(1) because there was a contrary intention from the amending legislation.
GUMMOW J: Yes, I see.
MR NUGAWELA: Nine of the 11 justices have ‑ ‑ ‑
GUMMOW J: But in the Full Court what – they accepted that there was not a contrary intention?
MR NUGAWELA: Correct.
GUMMOW J: But said you do not get in 37(1).
MR NUGAWELA: Correct, and the only reasoning for that – if your Honours look at Justice Scott’s reasoning at page 25 of the application book, at paragraph 22 of the unreported decision, his Honour misconstrued, with respect, the ratio decidendi in Toolan. His Honour said:
In the end result, all of the Judges in that case concluded that s 37(1) of the Interpretation Act preserved the position of the appellant because the appellant had already obtained leave from the District Court to commence proceedings.
In Toolan he had not obtained leave of the ‑ ‑ ‑
GAUDRON J: But he should have obtained leave if the matter had been ‑ ‑ ‑
MR NUGAWELA: He should have. It was wrongly refused.
GAUDRON J: Yes.
MR NUGAWELA: Indeed, and that is one of the situations that are not catered for in the savings provisions of the amending Act. It did not cover the field and in Musgrove and in Toolan the Full Court said it did not cover the field, there is no contrary intention, when the transitional provision refers to the granting of leave you should read the words into “or ought to have granted leave”. But then jumping from paragraph 22 of Justice Scott’s reasons, if your Honours look at page 26 of the application book, his Honour then discusses the law relating to nunc pro tunc in relation back and goes to page 27 and at paragraph 30 simply concludes this:
In my view Toolan is sufficient authority to determine the present appeal.
None of the grounds of appeal to the Full Court were looked at. There are five reasons why we say special leave should be granted in this case, your Honours.
GAUDRON J: Yes, Mr Nugawela, we might at this stage hear from Mr Odes.
MR NUGAWELA: If it please your Honours.
GAUDRON J: Thank you.
MR ODES: Your Honours, we contend that the issue here is the proper interpretation of section 32(7) of the Workers’ Compensation Act, that is the amending Act, and what the legislature intended by those provisions was to provide a cut‑off date and a cut‑off stage for the operation of the old provisions and the new provisions.
GAUDRON J: Except that one has to read them alongside 37(2) of the Interpretation Act, does one not?
MR ODES: Certainly one has to do that, but our submission is that the express provisions of 32(7) indicate quite clearly that if, in fact, the District Court has granted leave to commence proceedings, then the old provisions continue to apply and, if the District Court has not granted leave, then the new provisions apply.
GAUDRON J: That is not exactly what it says. You have to read that into it.
MR ODES: No, that is clearly so. That is clearly so, but ‑ ‑ ‑
GAUDRON J: And you have to read it into it in the face of 37(2).
MR ODES: Well, with respect, it is common ground in this case that leave was not granted in this case. In fact, the application for leave was not even heard before the assent date.
GUMMOW J: It had been instituted, though, had it not?
MR ODES: It had been instituted, but leave had certainly not been granted as required in 32(7).
GUMMOW J: Yes.
MR ODES: And our submission, very shortly, is that there is no canon of construction, with respect, or no recourse to the Interpretation Act which would have the effect, in our submission, that on a proper construction of 32(7), the old regime, or the former provisions are to apply notwithstanding the fact that leave to appeal has not been granted, because that is the effect of my learned friend’s argument and that, we say, would render section ‑ ‑ ‑
GAUDRON J: No, he says that comes from 37(1)(b), (c) and (f) of the Interpretation Act.
MR ODES: Yes, but, with respect, if the net result of a recourse to the Interpretation Act is, in fact, directly contrary to the express provisions of the amendment Act then ‑ ‑ ‑
GAUDRON J: No, but it is directly contrary to the implication that you would wish to make.
MR ODES: Well, it is quite clear, with respect, that the cut‑off date which the legislature in Western Australia – the cut‑off stage was that if, in fact, you had been granted leave by the District Court to commence proceedings then the old provisions apply, but it is clearly implicit in that that if you have not been granted such leave by that particular date then the new provisions apply.
GUMMOW J: What would be the rationale of that?
MR ODES: Pardon?
GUMMOW J: What would be the sense of that arrangement?
MR ODES: The sense would be that there would have to be a stage at which the new provisions would be triggered and the cut‑off stage which the legislature chose was a grant of leave to commence proceedings prior to the assent date, and that has not been given. To allow the old provisions to apply in a situation where the District Court has not granted leave to commence proceedings as required would fly in the face of that express provision notwithstanding the provision ‑ ‑ ‑
GAUDRON J: It would fly in the face of the implication that you say must be made notwithstanding the terms of 37(2).
MR ODES: That is correct, but it is a necessary implication, otherwise why choose that date? Why choose that cut‑off stage? The stage was chosen deliberately to say that all cases that fall on this side of the line or that side of the line have the old or the new provisions to apply and if, in fact, one reads the Interpretation Act together with section 32(7) in such a way that the construction is that the old regime continues to apply notwithstanding the fact that leave has not been granted, then we are really rewriting section 32(7) and that basically is our submission.
GAUDRON J: Maybe it depends on whether or not there was an accrued right to damages under the old legislation.
MR ODES: With respect, there is nothing in the amending section and that is the section on which we have to focus primarily. That is the section which we are required to interpret. There is nothing in that section that talks about rights of any kind. It simply says that if you have not reached a particular stage in these proceedings, the new regime is triggered. Our submission basically is this, that on no canon of construction can one read section 32(7) as meaning that the old provisions continue to apply notwithstanding the fact that leave has not been granted. That would be clearly contrary to the express terms. It would render section 32(7) ‑ ‑ ‑
GAUDRON J: So you say Toolan is wrong?
MR ODES: No, Toolan has a different situation altogether. In Toolan’s Case ‑ ‑ ‑
GAUDRON J: How do you justify Toolan other than by reference to 37 of the Interpretation Act?
MR ODES: In Toolan’s Case the court was confronted with the situation where an application had been made and had been wrongly refused and an appeal had been lodged. Now, in that sort of situation there is scope for the argument that the Interpretation Act applies simply because this particular section does not deal with a situation where an application has been wrongly refused and an appeal is pending. In this situation, the situation we are dealing with here, the applicant did not even get to stage one. It did not even get to the hearing of the application.
There is clearly scope in Toolan’s Case for arguing that the Interpretation Act applies because there had been an appeal pending in relation to a matter where there is an incorrect refusal of leave. That situation does not apply here. In Toolan’s Case the stage of the hearing and determination of the application for leave had already passed by the assent date. Here we have not even reached it. In actual fact it is quite clear in the obiter dicta of his Honour Justice Parker that the situation would be materially different to the situation he was dealing with had the application for leave not been heard.
It is only because 32(7) does not deal with the appeal situation that resort was taken to the Interpretation Act. But here we have not even reached that stage. Here the application had not even been made and to interpret section 32(5) by reference to the Interpretation Act to mean that ‑ ‑ ‑
GAUDRON J: But you have to go 37 of the Interpretation Act on your argument, do you not, to sustain the decision in Toolan?
MR ODES: In relation to a repeal. Our submission in the first instance is that we are dealing with an amendment. We are dealing with an amendment to an Act and not a repeal to the Act and therefore ‑ ‑ ‑
GUMMOW J: We had better be sure about this.
MR ODES: It is an amendment Act. The Act is called an amendment Act.
GUMMOW J: Yes, but the phrase in 37(2) is “repealing provisions of an enactment”. In the Interpretation Act it talks about “the repealing provisions of an enactment”. Are there no repealing provisions in this statute? Have we a copy of it?
MR NUGAWELA: May I assist your Honours?
GUMMOW J: It is the second little volume.
MR NUGAWELA: It is in the second little ‑ under tab 26 on page 22, bottom of the page.
GUMMOW J: What tab is it?
MR NUGAWELA: Tab 26 and, your Honours will see a page reference number at the bottom of the page. Tab 26 starts at page 20. It goes on to page 21.
GAUDRON J: So we are looking at section ‑ ‑ ‑
MR NUGAWELA: Section 32.
GAUDRON J: ‑ ‑ ‑ 32(5)?
MR NUGAWELA: That is the one, your Honour Justice Gaudron.
GUMMOW J: So it is titled the Workers’ Compensation and Rehabilitation Amendment Act?
MR NUGAWELA: Yes.
GUMMOW J: Then that says repealed. That is an repealing enactment, is it not?
MR ODES: Yes. It does in fact substitute a section for an existing section, that is correct.
GAUDRON J: It says repealed.
MR ODES: I cannot take the matter much further, but our basic submission is that if recourse to the Interpretation Act has the effect that section 32(7) on its proper construction means that the old provisions continue to apply notwithstanding the fact that leave to commence proceedings has not been granted, then in actual fact section 32(7) is meaningless.
GAUDRON J: The problem is – I mean, this is the difficulty, is it – either 32(7) is meaningless or 37(2) is meaningless. Is that not where we end up?
MR ODES: With respect, not. May I just say this, that the preamble to section 37 of the Interpretation Act talks about unless there is a contrary intention.
GAUDRON J: Yes, but then you have to read what is really a definition in subsection (2) of what a contrary intention is not.
MR ODES: Our submission is that if the approach which my learned friend wishes your Honours to accept is in fact accepted, then in fact we are rewriting section 32(7) because the implication is quite clear that the cut‑off date there is you have to get leave to commence proceedings before 5 October and if you have not got that ‑ ‑ ‑
GAUDRON J: But Toolan did not say that, did it?
MR ODES: Well, Toolan was not dealing with that situation.
GAUDRON J: There seems to be at least some inconsistency in the decisions in this area, does there not?
MR ODES: Well, Toolan’s situation was an a fortiori situation.
GAUDRON J: Well, I am not too sure about that. If the implication that you say is necessarily to be made from 32(7) is made, then it must exclude Toolan, must it not?
MR ODES: With respect, in Toolan’s Case there is scope for saying that in relation to ‑ ‑ ‑
GAUDRON J: But where does that come from? On your argument it does not come from 32(7).
MR ODES: No.
GAUDRON J: So where does it come from?
MR ODES: In Toolan’s Case the court held that because 32(7) does not apply they looked at the Interpretation Act.
GAUDRON J: Yes, I know what the court held. What I am asking you is, if you accept – you have said you accept the correctness of Toolan.
MR ODES: Yes.
GAUDRON J: Well, I am asking you on what basis do you support its correctness either by reference to 32(7) or by reference to 37 of the Interpretation Act? It has to be supported by one of those, if it is correct.
MR ODES: Yes. No, that is correct. Toolan did not really deal with 32(7). It dealt with 37 basically on the basis that 32(7) did not deal with the situation where the application had been heard and wrongly determined and an appeal was pending and therefore they looked to see whether there was an acquired right but ‑ ‑ ‑
GAUDRON J: So there is not an implication entirely in accord with your submission that the cut‑off date is ‑ ‑ ‑
MR ODES: There is an obiter in Toolan to that effect.
GUMMOW J: Where do we see that? It is reported in (2001) 25 WAR 1. Is it in the Chief Justice’s judgment or Justice Owen’s? There seems to be some lengthy discussion of Esber v The Commonwealth 174 CLR.
MR ODES: Can I perhaps refer your Honours to paragraph 13 of the judgment onwards:
The significant feature of the present case is that some months prior to the commencement of the Amendment Act an application had been made . . . Leave was refused and an appeal to this Court duly commenced within time.
And in 17 he then says:
In my view, there is no inconsistency between the provisions of s 32(7) of the Amendment Act and s 37 of the Interpretation Act. The result is, where no relevant proceedings are pending as at 5 October 1999, then, irrespective of the date of the accident or the date upon which the injury or disability occurred, the Amendment Act applies, unless one or other of the saving provisions in s 37(2) applies. In my view, in a case where one or other of the saving provisions applies, the intention of the legislation on its proper construction is that pending proceedings are subject to the statutory regime as it was prior to the amendment.
In paragraph 47 his Honour then says:
Material to the present appeal is s 32(7)(b) of the 1999 Amendment. Leave to commence proceedings to recover damages at common law had been sought by the appellant and refused by the District Court before the assent day –
and that was a material consideration.
GAUDRON J: We know it was material, but I want to know how it relates to the legislation. That is what concerns me. How does that relate to the legislation?
MR ODES: May I just refer to paragraph 62.
GUMMOW J: This is in Justice Wheeler’s judgment, is it?
MR ODES: That is Justice Parker’s judgment. It is at page 21 of the report:
In the context of this particular statutory scheme it seems to me that a worker claiming to have an entitlement to an award of damages at common law in accordance with the former provisions, who in accordance with the former provisions sought leave of the District Court to commence proceedings, and pursued that application for leave to the point of decision by the Court only to have leave refused, and who had instituted an appeal against that refusal and was duly pursuing that appeal, and who thereby had a right to have that refusal of leave reversed and to have a grant of leave if it had been wrongly refused by the District Court, has taken clear and manifest steps, and at that stage cannot do more under the statutory scheme, “towards availing himself” of the right. Having presented his case for leave and obtained a decision of the District (albeit adverse) on that case, and by appealing from that decision having acquired a right to have a grant of leave if it had been wrongly refused, the appellant in this case may be seen to be in a materially different position that, for example, a worker who had merely applied for a grant of leave but had not had that application heard and determined by the District Court when the 1999 Amendment came into force on 5 October 1999.
So he clearly draws the distinction.
GAUDRON J: That may be a proper distinction within terms of 37(1)(c). You say that has to be brought down into (f) as well, do you?
MR ODES: Yes.
GAUDRON J: And the right there being preserved was to have the appeal heard and determined?
MR ODES: That is correct.
GAUDRON J: But why is that any different from a right to have the application for leave heard and determined where there are mandatory provisions about the granting of leave?
MR ODES: Because the Act expressly says in section 32(7) ‑ ‑ ‑
GAUDRON J: Yes, I know what it expressly says, but if 37(1)(c) will operate with a right to have an appeal heard and determined, why will it not operate with respect to have an application for leave heard and determined in circumstances where the leave must be granted if certain conditions are fulfilled? What is the difference?
MR ODES: Because the difference in the first case is that the application has in fact been heard and leave was wrongly refused prior to the assent date.
GAUDRON J: I know the factual difference, but I am asking you, Mr Odes, to address the notion of right in (c).
MR ODES: Our basic submission is that by reason of the express provisions of 32(7) in this particular case the Interpretation Act does not come into operation.
GAUDRON J: I know that, but that is not what was held in Toolan, is it, the correctness of which you accept?
MR ODES: Yes. I have no further submission to make.
GAUDRON J: Yes, thank you.
GUMMOW J: Now, your draft notice of appeal is at 34.
MR NUGAWELA: Your Honours, yes.
GUMMOW J: And the orders sought do not appear entirely serendipitous really. What you want, if you were to get leave and succeed, would be an order allowing your appeal to the Full Court and in place of the orders made by Commissioner Chaney, who dismissed your application for leave, in the place of that dismissal you would seek an order remitting your application for determination by the court at first instance.
MR NUGAWELA: Yes.
GUMMOW J: Is that what you would be wanting?
MR NUGAWELA: Yes.
GAUDRON J: There will be a grant of leave in this matter but, Mr Nugawela, you perhaps had better ‑ ‑ ‑
MR NUGAWELA: Fix the notice ‑ ‑ ‑
GAUDRON J: ‑ ‑ ‑ more carefully attend to the notice of appeal when you file it.
MR NUGAWELA: Thank you.
GAUDRON J: It is a half a day matter?
MR NUGAWELA: Certainly half a day.
GAUDRON J: Well, we will indicate now it will not be given more than half a day and if counsel cannot arrange the allocation of time between them, somebody else will do it for them.
MR NUGAWELA: If it please the Court.
GAUDRON J: Yes, thank you.
AT 10.07 AM THE MATTER WAS CONCLUDED
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