Dossett v TKJ Nominees Pty Ltd

[2003] HCATrans 682

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P118 of 2002

B e t w e e n -

BRADLEY JOHN DOSSETT

Appellant

and

TKJ NOMINEES PTY LTD

Respondent

McHUGH J
GUMMOW J
KIRBY J
HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 2 MAY 2003, AT 10.01 AM

Copyright in the High Court of Australia

MR B.L. NUGAWELA:   May it please your Honours, I appear with my learned friend, MR J.J. SHELDRICK, on behalf of the appellant.  (instructed by Andrew Read & Associates)

MR M.W. ODES, QC:   If the Court pleases, I appear with my learned friend, MR G.W. NUTT.  (instructed by Jackson McDonald)

McHUGH J:   Yes, Mr Nugawela.

MR NUGAWELA:   Your Honours, if I may, there are two preliminary points before I start our submissions.  The first point is, contrary to our chronology of relevant events, the respondent’s notice of contention was filed within time and, in fact, it transpires on the question of time that the appellant’s notice of appeal, while it was filed in time, was served late by three days and the respondent has no objection to an extension of time for service and receipt the requisite….., if it please, your Honours.

McHUGH J:   Yes, you have leave to file a notice of appeal out of time.  The extension of time is granted.

MR NUGAWELA:   Thank you, your Honour.  The other preliminary point arises in this way, your Honour, that the respondent’s only argument in the court below was that the Amendment Act evinced the necessary contrary intention to rebut the presumption and the court below found that there was no contrary intention following the ratio decidendi in Toolan v Metropolitan (Perth) Passenger Trust.

Now, the respondent’s notice of contention contends that the honourable Full Court should have found contrary intention and, against that background, we for the appellant are happy to leave that issue to our replying address after my learned friend addresses it in his notice of contention, unless your Honours would prefer us to deal with it in our opening.

McHUGH J:   You are the appellant.

MR NUGAWELA:   Thank you, your Honours.  The overview of the two areas that arise in the notice of appeal are as follows.  The first area is on the question of the substantive operation of section 37(1) of the Interpretation Act.  The second area deals with the ‑ ‑ ‑

KIRBY J:   Why do you not start with the purpose of the repealing Act?  Is that not the logical place?  Then you have to see whether or not the Interpretation Act has an effect different from that which apparently is the consequence of interpreting the substantive Act.  I may be wrong, but that seems the logical way to deal with it.  One is the specific targeting in on your client’s rights and the other is the general, which is perhaps rescuing you from what otherwise might seem to be a sinking ship.  You do it your own way, but I just think that is the logical way to do it.

MR NUGAWELA:   Yes.  We will, when we are dealing with the presumption, speak first, your Honour Justice Kirby, in relation to the Amendment Act and the prior enactment.

The second area in which the notice of appeal issue it agitates is a question of the duties of an intermediate appellate court when it comes to giving reasons for decision.

GUMMOW J:   Why are we concerned with this?

McHUGH J:   It is nothing to do with us.  If they are wrong they are wrong; if they are right they are right.  We are not going to be bound by whether they should have decided this or that.  You have been granted special leave to appeal.

KIRBY J:   This is why also the question of whether they followed their own authority and so on, that is only relevant insofar as it touches on the substantive questions now before us.

MR NUGAWELA:   I accept that, your Honour.

KIRBY J:   We can deal with it finally.

MR NUGAWELA:   Yes, your Honour.  Turning if I may then to the first area, the question whether this appellant had a sufficient right, interest, power or privilege protected by section 37 of the Interpretation Act.

KIRBY J:   Justice Gummow pointed out in the special leave hearing that in some ways the West Australia provision is wider than other Acts in other States, is that correct?

MR NUGAWELA:   Yes.

KIRBY J:   Have you done any analysis of the saving provisions in other Interpretation Acts?

MR NUGAWELA:   Yes, we have.  In fact, your Honour Justice Kirby, section 37(2) of the Western Australian Interpretation Act has no analogue in other states or in the Commonwealth or even in the United Kingdom or New Zealand or Hong Kong and that is the provision, as your Honours know, which says that a contrary intention cannot be derived from a savings provision or a transitional provision.  The other difference, I suppose, your Honours, in relation to 37(1) of the Interpretation Act is that in Western Australia it does extend to interest, power or privilege.  From my recollection, for instance, section 8 of the Commonwealth Acts Interpretation Act does not refer to “interest, power or privilege”.

KIRBY J:   I am not quite following this.  Is 37(2) – that is the one that says that the inclusion of a special saving clause does not eliminate this general saving clause - is that what is unique in Western Australia?

MR NUGAWELA:   It is.

KIRBY J:   That is it?

MR NUGAWELA:   It is.

KIRBY J:   That does seem to be very relevant in this case, or at least arguably so.

MR NUGAWELA:   Yes, your Honour.

GUMMOW J:   So it throws light then on section 32(7), introduced by the 1999 Act? 

MR NUGAWELA:   It does, your Honour Justice Gummow. 

GUMMOW J:   Your client had a common law claim, that is right, is it not, for personal injury? 

MR NUGAWELA:   His underlying common law cause of action arose on the date of his injury in December 1996. 

GUMMOW J:   The statute placed a restriction or a burden on that, namely, the need for leave under section 93D ‑ ‑ ‑

MR NUGAWELA:   The former section 93D. 

GUMMOW J:   The former section 93D.  However, that burden was one which had to be lifted, and leave had to be given, if 93D(5) applied. 

MR NUGAWELA:   Correct.  One of the disjunctive criteria in 93D(5). 

GUMMOW J:   Yes.  There are three criteria there and, as you say, they are disjunctive. 

MR NUGAWELA:   Yes, your Honour. 

GUMMOW J:   Your client had put on his application for leave before the October date? 

MR NUGAWELA:   He did. 

GUMMOW J:   Why then, you ask, does not section 37(1) apply of the Interpretation Act? 

MR NUGAWELA:   Yes. 

GUMMOW J:   Which paragraphs do you rely on? 

MR NUGAWELA:   Rely on (b), (c) and (f), your Honour. 

GUMMOW J:   Paragraphs (b), (c) and (f). 

MR NUGAWELA:   Paragraph (c) essentially is a “right, interest, title, power or privilege” which was acquired or accrued prior to the repealing enactment; paragraph (f) is a “legal proceeding or remedy in respect of” that right; and, of course, (b) stands apart, an act “duly done” under the previous enactment. 

McHUGH J:   I do not know why you are spending time on this point.  This point was never decided against you, was it?  There is no notice of contention about it.  The Full Court seems to have assumed that you did have a right but it said that by reason of the amending Act, section 37 did not help you.

MR NUGAWELA:   Because it evinced the necessary contrary intention.  On the contrary, your Honour Justice McHugh, what happened in the Full Court was that they accepted that the Amendment Act did not evince the necessary contrary intention to oust the presumption and effectively decided, sub silentio we say, that this appellant did not have a right that was sufficiently protected.

McHUGH J:   I am not sure that they held that you did not have a right within the meaning of 37.  It seems to have been held that such a right was distinct from a right of appeal and that is why they distinguished Toolan.  One would have expected a discussion to say you did not have a relevant right.  There is no such discussion in the judgment, is there?

MR NUGAWELA:   Your Honour Justice McHugh is quite correct, yes.

McHUGH J:   Yes.

KIRBY J:   That is what you were trying to say in your complaint about the right reasons until we jumped on you and tried to say that that was not really relevant, but you say it is relevant to this extent, that it rather suggests that the Full Court did not focus its attention on a critical question.  The absence of discussion on the point is not itself going to deliver you your result but it is relevant to whether they gave thought to a foundation for your continuing cause of action.

MR NUGAWELA:   We might even suggest this tentatively, your Honours, that his Honour Justice Scott, who delivered the lead judgment, effectively relied on the obiter dicta of his Honour Justice Parker in Toolan in this way.  His Honour Justice Parker said obiter dicta in Toolan that Mr Toolan is in a materially different position than someone who has, for instance, merely lodged an application which had not been determined prior to the Amendment Act coming in force.  His Honour Justice Scott then elevated that obiter dicta, we say, into a ratio decidendi.

McHUGH J:   Maybe he did and maybe he did not.  When I read the judgment, I have to say with great respect - and the respondent may convince me otherwise - I could not understand what the basis of the judgment was because he just simply says, “In my view Toolan is sufficient authority to determine the present appeal.”  All you can find out of Toolan is, as you point out, the obiter statement of Justice Parker.  Nothing else in the case would seem to suggest that.

KIRBY J:   Would it be possible for you to give a thumbnail sketch of the course of cases after the workers compensation amendment?  They are referred to in your written submissions, but what chronologically was – there were sequences before full Benches of three and then they marshalled the five-Bench case in Toolan.  Is it possible very briefly to indicate what those cases were and what their factual variation was?

MR NUGAWELA:   Yes.  Your Honour, I think it is mentioned in the chronology filed by the appellant commencing at item 11.

KIRBY J:   The chronology came in late and separate, did it not, with your side?

MR NUGAWELA:   It did, with the reply.  Perhaps item 10, your Honour Justice Kirby.

McHUGH J:   I think some of us are a bit confused about just what this case is about in terms of the judgments of the learned judges in the court below because there is no discussion as to why you distinguish between a right of appeal and the right to make the application.  It just does not emerge.

MR NUGAWELA:   Yes, and the best we could have done, I suppose, is infer from his Honour Justice Scott’s reasons that his Honour allowed the decision in Toolan, the obiter in Toolan, to override the judicial function that the intermediate appellate court was charged with in this appeal.

KIRBY J:   Now, the factual situation in Toolan was different, was it not?  There had been a grant of leave to proceed in the District Court.  Is that right or wrong?

MR NUGAWELA:   That is not correct, your Honour.  Perhaps I can come to your Honour’s point, the chronology, and deal with that in that context.  Item 10 ‑ ‑ ‑

KIRBY J:   We are not bound by any of this, but it may help us to understand it.

MR NUGAWELA:   Certainly, your Honour.

McHUGH J:   You might take your seat.

MR NUGAWELA:   If it please the Court.

McHUGH J:   We might hear from you at this stage, Mr Odes.

MR ODES:   Your Honour, we rely on our notice of contention in this appeal and there are two basic grounds.  The notice of contention is at page 155 of the appeal book and basically there are two grounds.  What we say in the first instance is that the court below should have found, on a proper construction of section 32(7), read in the context of the amending legislation, that a contrary intention appeared, the result of which would render section 37 inapplicable.

McHUGH J:   Yes, and your point, I take it, is that Justice Kennedy was right in Toolan and that there is no distinction between the right of appeal and ‑ ‑ ‑

MR ODES:   Yes.  It was Justice Kennedy who was right in the Musgrove Case and Justice Wheeler was correct in the Toolan Case.

McHUGH J:   Yes.

MR ODES:   Her approach is the approach upon which I am going to rest my argument.  Her approach – and I will take the Court to it at a later stage – was basically that the correct starting point in the whole exercise is, as his Honour Justice Kirby pointed out, to look at the section itself.

GUMMOW J:   Which section?

MR ODES:   Section 32(7) of the amending Act, which in fact said that the old provisions will continue to apply if the leave has been granted.

KIRBY J:   Well, it is not only that.

HAYNE J:   We have to wrestle with the words, Mr Odes, not paraphrases.

MR ODES:   Perhaps I will quote the actual words.

GUMMOW J:   Good idea.

KIRBY J:   And it is both paragraphs.  They are both important because you say they define the universe.  That is what you have to say.

MR ODES:   What I say is that if one looks at the background of the legislation, one sees that under the old regime certain steps had to be taken and this has been replaced by a new regime, but what is consistent in both regimes is section 93C of the Workers Compensation Act, that is one section that has not been changed, and what 93C says ‑ ‑ ‑

GUMMOW J:   That is the burden on the common law right.

MR ODES:   Well, it says that:

If this Division applies a court is not to award damages to a person contrary to this Division.

So, basically, what the situation is that when the new regime was introduced we had section 93C applying which, in fact, said that:

a court is not to award damages to a person contrary to this Division.

So, basically, but for the transitional provisions, this would have applied to all cases.  This was the legislative command which is equivalent to the legislative command that was given in the Australian Industrial Relations Commission Case, which your Honours dealt with last year.

KIRBY J:   Well, it is not only but for the transitional provisions; it is also but for the Interpretation Act.  You have to take it altogether.

MR ODES:   That is correct.

KIRBY J:   We have to try and work out how the two are reconciled.

MR ODES:   What I am saying is that basically, let us for the moment forget about the transitional provisions, section 93C had the effect that a court was not empowered to grant damages contrary to this Division, so that you have a background, a matrix, upon which all actions, no matter when they were instituted, the court has not the power to do anything other than to award damages in terms of the new regime.  The only exception that is made is section 32(7).

GUMMOW J:   Well, wait a moment; 93C has to be read with 93D surely.

MR ODES:   It has to be read with everything.  It has to be read with 93D to F.

HAYNE J:   And not with the premise your argument just did, the premise that 93C is to be given an operation that has the new regime applying after the date.  I understand the end to which you get, but you do not get there by assuming it.

MR ODES:   Our submission is that a contrary intention does appear from the study of the analysis of 32(7) against that background and I rely on the judgment of her Honour Justice Wheeler in the Toolan Case ‑ ‑ ‑

KIRBY J:   Now, both of you at the Bar table have these great Western Australian cases swimming around in your mind:  Musgrove, Toolan.  They drip off the tongue.  Well, I have to tell you I have not read them.  I am one of those old-fashioned people who actually looks at the statute.  I mean, it is something which we do not tend to like to do anymore, so ‑ ‑ ‑

GUMMOW J:   I think it would be better if you kept looking at the statute.

KIRBY J:   Why do we not do that first and then we can plunge into what the Western Australian judges have ‑ ‑ ‑

McHUGH J:   Yes.  Well, let me say I have read those cases, but what I have some difficulty with is finding in a handy place the statutes.  Section 32(7), for instance, does not seem to be in the bundle of legislation attached to the appellant’s submissions.

MR ODES:   The relevant portion appears at paragraph 7 of the respondent’s ‑ ‑ ‑

GUMMOW J:   No, we want the text.

McHUGH J:   We want the text.  Yes, I have found it now. 

MR ODES:   It has been sent up to the High Court. 

McHUGH J:   Yes, I have found it. 

MR ODES:   That section reads that: 

The amended provisions do not affect the awarding of damages in proceedings . . . 

(b)  for the commencement of which the District Court gave leave under the former provisions before the assent day,

and the former provisions continue to apply in relation to those proceedings. 

KIRBY J:   Now, I am surprised that you have jumped over (a), because at least it seemed to me that one of the key arguments you have is that (a) and (b) describe the universe and that Parliament has provided for, and only for, and exhaustively for, the cases in which the amending provisions do not have an effect.  Otherwise, they do have an effect.

MR ODES:   I will accept that, your Honour.  I might just say that paragraph (a) was ‑ ‑ ‑

KIRBY J:   You are ultimately going to have to do battle with the Interpretation Act, which is down the track, hovering in the bushes, waiting to try to rescue the appellant. 

MR ODES:   That is correct, but what I say is that section 32(7) cannot be read in isolation.  It has to be read against the background of the amending legislation.  The amending legislation, it is common ground, does introduce a new regime.  As I have submitted previously, section 93C ‑ ‑ ‑

GUMMOW J:   The new regime further constricts common law rights. 

MR ODES:   It does.  It certainly does. 

McHUGH J:   It did not touch 93C, did it?  It just left it there. 

MR ODES:   No, 93C was there and it has remained unaltered ‑ ‑ ‑

McHUGH J:   Yes, but it substituted 93D, E, and other sections. 

MR ODES:   That is correct.  So what we do have here is not only 32(7), which indicates circumstances in which the old regime continues to apply, but we have the new regime, which in fact issues a legislative command to the effect that if this Division applies, a court is not to award damages to a person contrary to this Division.  Now, in our submission, that leaves no room for the application ‑ ‑ ‑

HAYNE J:   That simply assumes the answer that you wish to arrive at.  It does not demonstrate the answer; it assumes it.  The question is, is it the amended provisions or is it the former provisions that are engaged?  Saying that 93C has a particular operation leaves open for debate the further question, well, is it Part IV Division 2 as amended by section 32 of the amending legislation of 1999, or is it the former provisions? 

MR ODES:   Our submission here is that it is in fact the position as stated by her Honour Justice Wheeler in the Toolan Case.  I will take you to that simply because – and the reason we have been bandying about the West Australian cases is that those cases dealt specifically with this particular point. 

McHUGH J:   I appreciate that, but it is always helpful – indeed, I personally think you should always start with the statute and analyse the statute, and then come to the cases to see whether they support your argument or whether they can be distinguished or rejected.  What do you say about the statute?  Justice Kirby pointed out to you an argument that (a) and (b) suggest that 32(7) is exhaustive of the circumstances in which a claim can be made under 93C retrospectively or in terms of what has occurred in the past. 

MR ODES:   I will adopt that ‑ ‑ ‑

KIRBY J:   I would have thought that the strongest argument that you have is that here the legislature has turned its attention to transitional cases.  It has said, “We recognise that there are going to be a lot of things in the pipeline but we are only going to allow to continue cases which were commenced before the assent day or, although they have not actually commenced, have leave to commence, and those which are still awaiting leave to commence or have just been filed and nothing has been done to invoke the leave, they’re out.  Sorry.  Goodbye.”  That therefore, on one view, leaves no room for general provisions to rescue them because Parliament has expressly, specifically and with great particularity dealt with those cases.

MR ODES:   That is the argument which I believe was set out in paragraphs 14 and 15 of my submissions where I say that the legislative purpose in introducing the Amendment Act is to curtail further the circumstances under which a worker suffering a disability can become entitled to an award of common law damages.  As at the assent date there were many workers who had sustained disabilities at work and who immediately prior thereto had not obtained leave to institute proceedings for common law damages in respect thereof.

GUMMOW J:   We have read that.  At the end of the day do you not have to say that 93G(7) does not do it expressly but it is an implied repeal of 37(2) of the Interpretation Act.  It is not an express repeal of 37(2).  It is not expressed to touch 37(2).  You have to say it is an implied pro tanto repeal of 37(2) of the Interpretation Act.

HAYNE J:   Section 32(7).

MR ODES:   Is this 93G?

HAYNE J:   No.

GUMMOW J:   Section 37(2).

McHUGH J:   You said 93G.

GUMMOW J:   I am sorry.

HAYNE J:   It is 32(7) of the Amending Act - an implied repeal of 37(2) of the Interpretation Act is I think ‑ ‑ ‑

GUMMOW J:   Yes, that is right.

MR ODES:   That is my submission, in fact.

GUMMOW J:   What are the tests then for discerning an implied repeal and how do they apply here?

McHUGH J:   You do not have to go quite that far, do you?  Can you rely on 37(1), the “unless” clause?  Maybe you cannot.

MR ODES:   Our submission is that 37(2) deals only with the non‑prejudice to the operation of this section and this section includes 37(1) which has the clause “unless a contrary provision appears”.

GUMMOW J:   I know, but 37(2) is giving content to the phrase “unless the contrary intention” in 37(1), that is why it is there.

MR ODES:   Yes.  Our submission there is that all that 37(2) does is it spells out that if in fact a contrary intention does not appear then the repealing or the amending legislation cannot prejudice the operation of section 37(1).  You cannot have a broader meaning than that.

GUMMOW J:   The scheme of 37(2) I think is to say to the Parliament, “Okay, you have to be explicit”.

KIRBY J:   And that for the reason that experience has taught over many centuries that you can get accidental and mistaken abolition of people’s rights and courts in defence of people’s rights have said with a fair degree of consistency you can take away people’s rights but you have to do it very clearly. Ultimately, it may be that when you read 37(1) and (2), and they tend to suggest, especially that unusual provision (2), that you do keep alive, notwithstanding transitional provisions, people’s rights, then you have to have a very clear provision in 32(7) to take them away. This is defensive of the rights of the citizens. Parliament can do what it likes within the Constitution, but if it is going to take away rights, it has to be very, very clear, and that is what Esber really says.

MR ODES:   We say that that clarity comes from section 93C, which in fact prohibits the court from ‑ ‑ ‑

KIRBY J:   I do not know about that because that was there forever, was it not?  That was there before.  So that is just a general provision.  It has not addressed its intention specifically to the problem we are grappling with.

McHUGH J:   I think you are flogging a dead horse here.  Justice Hayne has told you that 93(7) is not the answer and so, as Justice Kirby has indicated, it seems to me to be the case.  It is the end; it is not the process by which you get there.

KIRBY J:   It is a very general provision and therefore it is not really focusing on – we are down there with our magnifying glasses, we are in there looking at these little provisions trying to work out how they work together and you just want to have the broad vista.  You are a big picture man.

MR ODES:   Your Honours, I really cannot take that matter any further.  I have made my submissions.  There is no point in repeating them.  That brings me to the alternative argument and that is that because of the broad sweep of section 37(2), one has to look at it as relating solely to repeals as defined in the Act and a repeal and an amendment are totally different concepts. 

Your Honours will have before you a book of extracts of the Interpretation Act.  It is bound by a ring file and the Court will see at page 4, the handwritten 4 at the top of the page, “amend” is defined as meaning “replace, substitute, in whole or in part”.  “Repeal”, if the Court looks at page 7, “includes rescind, revoke, cancel, or delete”.  What is significant about it is that “repeal” does not include “amend”, so that that distinction has to be borne in mind.  Section 37 applies only to repeals.  There are other statutes around the country where it applies to both repeals and amendments but ‑ ‑ ‑

GUMMOW J:   Yes, the trouble with that argument is that if you are look at the actual text of the 1999 Act, section 32(5) said that the old 93D, 93E and 93F:

are repealed and the following sections are substituted.

And then there is a definition given of amended provisions over in 32(6).

KIRBY J:   Could I interrupt for a little guidance, because Justice Gummow earlier referred to section 93G(7) and that is because the papers we have been given – I just cannot understand how this statute was put together.  It has 32 up the top of the page ‑ ‑ ‑

MR ODES:   If one looks at page 22, there is section 32(5) and looking at page 22 at the bottom, the Workers’ Compensation Act says:

Sections 93D, 93E and 93F of the principal Act are repealed and the following sections are substituted.

But the point that I make in this case is that in the Workers’ Compensation Act in this Amendment Act, the terms “repeal” and “amend” are not used in the same sense in which they are used in the Interpretation Act.  The Interpretation Act says that if in fact you replace or substitute in whole a section, you are amending it.  Section 37 applies only to repeals.  If one goes back to ‑ ‑ ‑

KIRBY J:   Do you say that despite the fact that section 32(5) talks of repeal that we are not to apply section 37(2) of the Interpretation Act to that?

MR ODES:   That is correct.

KIRBY J:   Well, that would seem a very odd result, even though it is in terms a repeal, of the same legislature, dealing with repeal and repealing provisions, which is an adjectival phrase ‑ ‑ ‑

MR ODES:   Well, if the Court looks at my outline of submissions, you will see that there is an indiscriminate, an interchangeable use in the Workers’ Compensation Amendment Act and there is ‑ ‑ ‑

HAYNE J:   No.  Surely, the amending Act of 1999 did two things:  it repealed what for shortness I will call the old regime.  It amended the Act by substituting a new regime.  Because it repealed the old legislation, section 37 of the Interpretation Act was engaged in respect of rights that arose under that old legislation.  The question at issue is whether the right – in this case the common law right to bring action, burdened as it was - was done away with by the repeal in the 1999 Act of the old regime.  Prima facie, 37 says no, it was not, 37(1) says it continues.

The next stop in the inquiry is:  what is the significance to be given to the operation of 32(7) of the 1999 Act where it deals in its terms with whether the new regime, the amending provisions, affect the awarding of damages in certain proceedings and say that those new regime provisions do not affect awarding and the former provisions continue to apply, is that an exhaustive state of all of the universe?  The answer made against you is no, see 37(2).  Unless you can get to the point of saying 32(7) impliedly pro tanto repeals 37(2), at the moment I do not see where the case get to from your end of the Bar table.  But is that not the case in a nutshell?

MR ODES:   That would be the case in a nutshell and that is the case I have to meet.  The argument that I am directing at the moment is basically the use of the definition of “appeal” and “amend” in the Interpretation Act.  Your Honour says that the old regime was repealed and the new one was brought in.  That may have been, with respect, the common law approach to the meaning of “appeal” and “amend” but where an Act defines the particular terms one has to give those terms the meaning that it bears as defined.  Under the Interpretation Act the term “amend” as used in the Interpretation Act means the replacement or substitution in whole, so if in fact ‑ ‑ ‑

McHUGH J:   No, it does not.  It says “part” as well.

MR ODES:   It says “in whole or in part”.

McHUGH J:   Yes.

MR ODES:   Yes, but I am saying that if you substitute 93D in whole, then for the purposes of the Interpretation Act that is an amendment and not a repeal.  It may have been a repeal under the common law and the various cases discussed under the common law but for the purposes of the Interpretation Act a substitution in whole or in part or a replacement ‑ ‑ ‑

McHUGH J:   The definition of “repeal” is inclusive.

MR ODES:   That is correct.  I have indicated, with respect, that it does not indicate that it includes an amendment.  The terminology used in relation to the repeal is that it “includes rescind, revoke, cancel, or delete”.  Our submission is that if you are going to draw a distinction between “amend” and “repeal”, then the words that are used as inclusive in the word “repeal” are situations where the particular section ceases to exist altogether and is not replaced or substituted by something else.  Where a section has been altered or substituted we say, with respect, that under the Interpretation Act that constitutes an amendment and section 37 does not apply.  The intention, we say, of the legislature in defining the terms in that way is that section 37 is to be confined to repeals in the defined sense and when we look at the amending Act ‑ ‑ ‑

HAYNE J:   Does it follow that the substitution of any new regime necessarily excludes the operation of 37 of the Interpretation Act.

MR ODES:   Yes, with respect.

HAYNE J:   That is a very large proposition.

McHUGH J:   That is a large proposition.

MR ODES:   If you give the words the meaning that they bear in the Interpretation Act, then it is clear that the legislature did not intend section 37 to apply to amendments, as defined.

McHUGH J:   Why not?  If it repeals a section and replaces it by something else, it repeals it.  It may be both an appeal and an amendment.

MR ODES:   It is significant, with respect, that the repeal does not include an amendment. 

McHUGH J:   Well, I will study this argument of yours, but at the moment it does not seem to me to have any substance at all. 

MR ODES:   May I just indicate, if one looks at the outline of submissions at page 11, at paragraphs 40 and 41, we see the indiscriminate and interchangeable use of the words “repeal” and “amendment” in the amending Act in a way which is inconsistent with the meaning ascribed to it under the Interpretation Act. 

We see that section 32(5) of the amending Act we have referred to “are repealed and the following sections are substituted”.  In terms of the Act – that means the Interpretation Act – the replacement or substitution of a section in whole or in part would fall within the definition of an amendment.  Significantly, section 32(1) of the amending Act deleted an entire definition and substitutes a new one but, in that instance, it states that it is an “amendment”.  So there is an indiscriminate and interchangeable use of those two terms in the amending Act which indicate, with respect, that the legislature in using those terms in the amending Act were not using it in the sense defined in the Interpretation Act. 

GUMMOW J:   Now, could you look at section 35 of the Interpretation Act?  That is an illustration, is it not, of a repeal and a substituted provision, and the substitution passes an amendment, perhaps, but it does not deny there has been a repeal.  

MR ODES:   It is certainly contrary to the argument that I put forward.  It certainly is not ‑ ‑ ‑

GUMMOW J:   Are there any sections which use the word “amend”?  Section 33 is an example.  Again, the notion of repeal is quite clear. 

McHUGH J:   Look at 36. 

MR ODES:   If one looks through the various provisions of the Interpretation Act, what is clear is that a clear distinction is drawn between an amendment and a repeal.  It would be very surprising indeed if in fact one were to include in the definition of the word “repeal”, although it is not an exhaustive definition, an amendment. 

HAYNE J:   But is not the essence of the distinction which is drawn that “repeal” is referring to that which was and “amendment” is referring to that which becomes?  In particular, in 37 it is a reference to rights that accrued under the old law. 

MR ODES:   That certainly may be the policy that the legislature followed, but my submission is made purely on the definitions given.  We would submit that had the legislature intended to give section 37 a broader meaning to include an amendment, it would have included that in the definition. 

GUMMOW J:   No, to include a repeal followed by something else. 

MR ODES:   Well, that in fact would be a substitution, with respect, or a replacement, which, in terms of the Act, would be an amendment. 

McHUGH J:   When the legislation takes away an enactment, to use a neutral term, it repeals it and the fact that it may substitute something else in a completely different form, in a modified form, or may not do anything does not stop the taking away being a repeal.  After all, 37(1) is in a form that is found in jurisdictions throughout the common law world and this is the first time I have ever heard it suggested that it does not cover a case where the legislature has taken away an enactment and added something to it or modified it or amended it, if you like.

MR ODES:   It may be of some assistance, may I hand up – we have prepared a comparative table of the various provisions of the other pieces of legislation in Australia just to indicate that there is a deliberate – what we have here is a comparative table of the various provisions where one sees that the Commonwealth legislation, section 8 applies to repeal only.  There are Acts which apply to a repeal and amendment specifically in the equivalent of section 37.

One does find in the column headed “Definitions of ‘Repeal’ and ‘Amend’” that the West Australian legislation is the only piece of legislation that defines “amend” and “repeal” in a fuller form.  The Court will see that in the other pieces of legislation they relate either to subsidiary enactments or they do not fully define it and the common law would clearly apply there, the common law approach.  But the West Australian legislation has in fact sought to define specifically what those terms mean.

Further along the line one sees the relevant provision as to right, privilege, obligation or liability or the broader formulation of right, interest, title, power and privilege.  The West Australian legislation was the only piece of legislation that defines “repeal” and “amend” in terms as specific as this and our submission is that a substitution or replacement does not fall within that definition and, therefore, section 37 does not apply.

May I just, perhaps, go back to the first argument about the contrary intention.  There is a reference in my outline of submissions to a statement made by the Minister.  It appears in Hansard and I believe that that extract has in fact been handed up to the Court.  If one looks at that, it is a statement that was not made during the second reading debate simply because the Minister felt it was not necessary to deal fully with the matter because the opposition supported the Bill.

This is a statement made by the Minister concerned and it is found at page 2456 of Hansard, Mrs Edwards:

I wish to remove any doubts about the transitional provisions contained in section 32(7) and 32(8) of the Workers’ Compensation and Rehabilitation Amendment Act.

HAYNE J:   A new form of extrinsic material, ministerial statements after enactment?

MR ODES:   May I just say that in the compilation in the Interpretation Act of Western Australia, if one looks at section 19 – I am dealing with the stages – at the handwritten page 12, that is the section that enables the court to look at extrinsic material and what I rely upon in section 19(2):

Without limiting the generality of subsection (1), the material that may be considered in accordance with that subsection in the interpretation of a provision –

Then they deal with the various parts including the second reading debates, the speech made, that is (f) ‑ ‑ ‑

GUMMOW J:   This is not (f), is it?

MR ODES:   No, it is not (f), it is (h).

HAYNE J:   That is an assumption about whether it is relevant material, whether the Minister’s expression of view in the House is relevant to the issue, but I understand how you put it.

MR ODES:   That is the only other matter that I want to draw the Court’s ‑ ‑ ‑

KIRBY J:   This was after the Bill had come into force?

MR ODES:   It is two weeks afterwards.

KIRBY J:   Did she explain why she was making this late, or this is to remove doubt?

MR ODES:   Yes, she says that:

As members would be aware, clarification on the transitional provisions was not read into Hansard because the opposition parties agreed to the legislation.  However, certain parties seem to have divergent views on the interpretation of these transitional provisions.  Accordingly it would be prudent to place on the record a clarification of their meaning and clear intent.

Then she sets out what is ‑ ‑ ‑

GUMMOW J:   It would have been better if some of her advisers had adverted to the Interpretation Act, would it not?

MR ODES:   I am putting it forward for what it is worth and I am drawing your attention.  It does enjoy some status in terms of section 19(2)(h).  The weight to be attached is for the Court to decide.  I have no further submissions.

McHUGH J:   They are your submissions, are they, Mr Odes?

MR ODES:   Yes, your Honour.

McHUGH J:   You are not having any other submissions on the other issue?

MR ODES:   No.

McHUGH J:   Yes.

KIRBY J:   I am still waiting for some chronological statement of how the cases then took this matter to the Full Court and what they did about them because apparently Justice Kennedy expressed one view and ‑ ‑ ‑

MR ODES:   Justice Kennedy gave a minority dissenting judgment in Musgrove’s Case.

McHUGH J:   His judgment fully supports your position, does it not?

MR ODES:   Yes.

KIRBY J:   Is that on the basis that the amending provisions of the workers’ compensation legislation 37 expels any operation of the Interpretation Act or does he do it on this repeal – that the Interpretation Act does not get a look in because of the word “repeal”?

MR ODES:   No, not on that point.  He deals with it on ‑ ‑ ‑

KIRBY J:   You are on your own on that point, are you?

MR ODES:   I am on my own.  He deals with it in relation to the first point, the contrary intention point, and he comes to the conclusion that there is no scope for the operation of section 37 because 32(7) is an exhaustive piece of legislation.

GUMMOW J:   His Honour did not direct himself to 37(2) of the Interpretation Act.

MR ODES:   No.  I might mention, as well, that although I do rely on the judgment of Justice Wheeler in Toolan’s Case, neither did she.

GUMMOW J:   Yes, I think we discussed this on the leave application.

KIRBY J:   Why did they assemble a Bench of five?  Had there been, apart from Musgrove, divisions of opinion within the Supreme Court of Western Australia?

MR ODES:   Yes, and if one looks at Musgrove’s Case there were three judgments, all of which had different ratios.

McHUGH J:   Yes, I had some difficulty in understanding the Full Court in this case where Justice Scott said it was the appellant in Toolan that sought the Bench of five.  Given Musgrove, I would have thought it would be the respondent.  Who sought the Bench of five, do you know, in Toolan?

MR ODES:   I could not tell the Court, your Honour, but apparently there were a number of cases in which the determination of this point was weighted and the Court felt that it was necessary.

McHUGH J:   Musgrove seemed to support Toolan rather than the respondent in that case but ‑ ‑ ‑

MR ODES:   With respect, though, if one looks at the approaches taken by the judges – certain Judge Wallwork, for example – they dealt initially with section 37 and ignored the actual wording.

McHUGH J:   Yes.

MR ODES:   If one looks at Toolan’s Case as well, the approach there was the same.  It started at the wrong point.  That is the point that her Honour Justice Wheeler made in Toolan.  She also felt that the other judges had started the inquiry at the incorrect point and then proceeded to analyse section 32(7) and came to the conclusion, against the background of the – with the contextual background, that there was no room for the application of section 37.

KIRBY J:   The other way to reason is to say, “Section 32(7) on its face is the universe and excludes the present appellant but, hang on, we know that Parliaments often make slips in this matter and we have 37 of the Interpretation Act and as well, in Western Australia, we have 37(2), which subject to your repeal amendment argument, is giving a larger ambit.  Let us therefore look at the facts.  The facts are the appellant got his application.  Had the District Court moved with great speed, it could have been heard and determined in due time and it is not his fault that the public system of the courts did not do so.”

This is exactly the sort of case for which keeping people’s rights alive are intended.  Parliament has to be very, very, very, very clear to take them away because they belong to the citizens and it has said it in some ways that suggest that it has taken it away but it is not so clear as to expel the operation of 37(2) because he had, after all, got his application into the court and they could, practically, have dealt with it in time.

MR ODES:   Yes.  Her Honour Justice Wheeler came to the same conclusion, but by a different way.  She held that the amending section did not affect appeals.  You could still go ahead with your appeal and if in fact ‑ ‑ ‑

GUMMOW J:   In that case there had an appeal to the Full Court, had there not?

MR ODES:   Yes.

GUMMOW J:   There was a pending appeal to the Full Court on October 5.

MR ODES:   In Toolan’s Case, yes.

McHUGH J:   Yes.

GUMMOW J:   So there was another Act engaged.  There was the legislation controlling appeals from the District Court to the Supreme Court to the Full Court.

MR ODES:   Yes, but her Honour Justice Wheeler said that if in fact there was merit in the appeal the appeal could be allowed and under Order 42 of the West Australian Rules of Court the court could then antedate the order so that it would fall within the purview of section 32(7) and that is the way in which those rights would have been reserved and the reasons for the delay would have been overcome because that clearly would be an exceptional circumstance which would justify the antedating of the order.  That was the way in which she arrived at the protection of the person in the position of the appellant in this case.

McHUGH J:   Yes, thank you for your candour.  So you confine your arguments to your original argument?

MR ODES:   I have difficulty in arguing that should there not be a contrary intention that there are no rights.  There clearly are.  I must fail ‑ ‑ ‑

McHUGH J:   Yes, well thank you very much for your candour on that point, Mr Odes.

MR ODES:   ‑ ‑ ‑ if there is no contrary intention.

McHUGH J:   Yes.  Yes, Mr Nugawela.  You have heard what your opponent has said.  The battleground has changed.

MR NUGAWELA:   Somewhat, your Honour.  Can I say this about the position in Toolan, the two things that arose from the exchanges between your Honours and my learned friend.  It was not the appellant in Toolan who sought convening a Bench of five justices.  His Honour Justice Scott made an error in the reasons.  It was in fact the respondent.

McHUGH J:   That is what I would have thought was the case.

MR NUGAWELA:   Yes, but that was the reality.  The second thing, of course, is that the appeal to the Full Court in Toolan occurred after the new regime came into force on 5 October 1999 and it was factually indistinguishable from the position in Musgrove.

GUMMOW J:   The judgment in Toolan came down whilst the judgment in the present case was under reservation.

MR NUGAWELA:   That is correct.

GUMMOW J:   Then there were the submissions.

MR NUGAWELA:   Which takes me to my second part, your Honour Justice Kirby, the thumbnail sketch.  If I can just deal with that very briefly.  Paragraph 10 of ‑ ‑ ‑

KIRBY J:   Justice Heydon took pity on me.  I kept begging and asking and begging and asking and he has written it all out here, so I have the thumbnail sketch.

MR NUGAWELA:   Very well, your Honour.  If I can just elaborate very quickly by reference to the appellant’s chronology, item 10.  This was when the current matter went before the Full Court on the interlocutory application for leave to appeal.  At that stage the Full Court had already heard argument in Musgrove – and that is item 11 – but had reserved their decision, granted Mr Dossett leave to appeal to the Full Court on 15 June and then delivered the decision in Musgrove on 28 August. 

One of the justices that granted Mr Dossett leave on 15 June was Mr Justice Ipp, who was the judge who delivered the leading reasons in Musgrove.  Item 12, hearing before the court in this appeal was reserved on 20 February and then after that Toolan was handed down and the Full Court subsequently invited written submissions from the parties.  The rest of the chronology is self‑explanatory.

KIRBY J:   I still have the problem that I had at the very beginning of the case when I suggested to you that you really have to start with the workers compensation legislation.

MR NUGAWELA:   Yes.

KIRBY J:   It is no part of the function of a court to defy Parliament.  On the contrary, our whole search is for Parliament’s purpose in the interaction of any relevant legislation.

MR NUGAWELA:   Yes.

KIRBY J:   These sorts of amending or repealing Acts are hard.  They put caps, limitations and take away rights in ways that are hard, but they are done for apparent legislative purpose that has concurrence right around Australia.  The problem I still have is here the legislature did address itself to the intermediate cases and it cannot therefore be said that it did not address the matter and it did so in two ways.  If you have your application, fine.  If you put your application in and it has been granted, fine, but otherwise you are out.

Now, why does that not rebuff all the generalities and all the hopes of people at various stages who are on appeal and doing various other things that here there is the command of Parliament that has addressed itself to, in a rather particular way, with two subparagraphs that really deal with the universe.

MR NUGAWELA:   Yes.  Can I answer that, your Honour, in the way we have put it in our outline of submissions, that the starting point is to characterise the nature of 32(7) of the Amendment Act.  That appears on page 32 of the Amendment Act.  That is the starting point and it is inescapable, in our respectful submission, that 32(7) is a savings provision or a transitional provision.  If there be doubt, let that doubt be removed by page 20 of the Amendment Act, which is the long title to section 32, which says: 

Amendments about awarding of damages and related matters . . . and saving and transitional provisions –

So the starting point, your Honour Justice Kirby, is that 32(7) is a saving ‑ ‑ ‑

KIRBY J:   Where do we find the long title? 

MR NUGAWELA:   On page 20. 

HEYDON J:   We do not have that. 

KIRBY J:   The presentation of the legislation in this case leaves a lot to be desired.  Instead of having a folder with both Acts and the sections, we are going all over the place.  Anyway, where is it? 

MR NUGAWELA:   I am sorry, your Honour.  It is on page 20 ‑ ‑ ‑

KIRBY J:   Page 20 of what? 

MR NUGAWELA:   Of the Amendment Act itself.  They are numbered for convenience on the bottom of the page. 

HEYDON J:   Not in our copies, I think.  That page is not in our copies. 

KIRBY J:   Is it that page there, is it? 

MR NUGAWELA:   No, it is this page here, your Honour, and in fact it is stapled to the appellant’s replying submissions. 

McHUGH J:   Well, it was not stapled to mine. 

KIRBY J:   It is this section, is it? 

MR NUGAWELA:   That is the one, your Honour Justice Kirby. 

KIRBY J:   It is in the reply and it is page 20, down the bottom.  Yes.  Ultimately I will just have to go and put all these things together in some sort of order.  Go on – these are mild irritations.  As you get older, they loom larger. 

MR NUGAWELA:   Thank you, your Honour.  32(7) ‑ ‑ ‑

KIRBY J:   I am just trying to be helpful in making that comment.  Now, what do we read there on page 20? 

MR NUGAWELA:   On page 20, the long title makes reference to “saving and transitional provisions”.  Then one goes to 32(7) ‑ ‑ ‑

KIRBY J:   Yes, but that is a bit against you, is it not?  Parliament has said “We’re going to deal with the universe of saving and transitional provisions and we’re going to deal with them in this way, in the manner in subsection (7)”. 

MR NUGAWELA:   To develop my submission, the starting point is to characterise that as a saving or transitional provision.  The minute that is seen to be what it is, a saving or transitional provision, 37(2) of the Interpretation Act cuts in.  Section 37(2) says you can have savings or transitional provisions, but that cannot be the source of a contrary intention to rebut the statutory presumption in any circumstances – whether they cover the universe or otherwise. 

McHUGH J:   The strength of your argument is that unless the amending Act impliedly repealed pro tanto 37(2), it is game, set and match because 37(2) says the inclusion of a saving provision does not affect subsection (1) in any way. 

MR NUGAWELA:   That is the formula by which Parliament in Western Australia should take into account when it is passing retrospective legislation.

KIRBY J:   I still have this problem, that 32(7) addresses itself with high particularity to litigation at different stages and it says, “We are only going to allow two stages:  those which were commenced before the assent day – that is to say they have their leave and they have started – or, although they have not started, they have their leave and they could have started.”  So it is arbitrary, but it is addressing the very, very precise question of claims in the process of their journey to completion and, therefore, this is such particularity that it indicates that the legislature did not overlook the issue but addressed the very precise question by reference to the stage on the journey.

MR NUGAWELA:   Within their transitional provision and therefore thereby impliedly repealed 37(2) of the Interpretation Act.

KIRBY J:   Yes, but we have to try and make 37(2) work with 32(7) and 37(2) cannot contradict 32(7); it can fill in a gap if there is a gap.

HAYNE J:   And there is a contradiction if, but only if, you read 32(7) as containing within it the word “only” or containing the words “despite anything said in 37 of the Interpretation Act”.  If you do not find “only”, if you do not find any “despite” clause and as I understand your argument is that 32(7) says, “These two cases shall be dealt with under the old regime”, but it does not say, “Only these two cases shall be dealt with under the old regime”, and therefore 37 has its work to do.

MR NUGAWELA:   As noted by his Honour Justice Parker in the Toolan decision, no express words were chosen by Parliament in 32(7).

KIRBY J:   And I suppose you can then add to that in the ingredients to telling the judge, “If you are in doubt at the cusp of your decision on this point, please bear in mind, first, that there is the general principle of statutory construction that you do not take away citizens’ rights unless Parliament has done so very clearly and, second, if you look at what this Court has done in somewhat analogous cases, in Esber, it has been very strict on that rule.”  I thought Justice Brennan wrote a very good dissenting judgment in Esber, and yet the Court, four of the Justices, said you have to be very clear if you are taking away people’s rights, and that is not a bad principle for courts to uphold.

McHUGH J:   You might add to the reasons that Justice Kirby gave, the fact that you do not lightly find that Parliament is impliedly repealed, even pro tanto, another statute.

MR NUGAWELA:   Yes, and I think Pearce and Geddes deal with that at paragraph 7.10 very succinctly in their latest edition.

McHUGH J:   What is the situation if this appeal is allowed?  Does it follow that you would automatically get leave, you would…..leave, or is that a matter for debate?

MR NUGAWELA:   The merits were not dealt with by the court below so it would have to go back to the District Court.

GUMMOW J:   But would there be debate?  Would it be disputed?  Would it be argued against you that you did not bring yourself within one or other of (a), (b) or (c) of subsection (5)?

MR NUGAWELA:   There cannot be debate on that issue.  I am sorry, yes, there would be debate on that issue.  It was a point that was not conceded in the District Court.

GUMMOW J:   It is still not conceded, that it what we are trying to find out.

MR NUGAWELA:   We have a particular view of that because there were no affidavits in opposition in the District Court.

KIRBY J:   Are we concerned with that issue?

MR NUGAWELA:   Not at all.

McHUGH J:   It might affect our order, that is all.  If your appeal is allowed, a proper order might be to substitute an order granting you leave, but if it is open to debate ‑ ‑ ‑

MR NUGAWELA:   It might be a matter for my learned friend, your Honour.  In conclusion, if I might very briefly ‑ ‑ ‑

KIRBY J:   Have courts in other common law countries taken the same line as Esber?

MR NUGAWELA:   Certainly.  In Canada, in the United States.

KIRBY J:   Do you have those cases?

MR NUGAWELA:   I can get my junior to dig them up, your Honour, and give your Honours copies of them.  In the Supreme Court in Canada ‑ ‑ ‑

KIRBY J:   Because it is really – a court is not frustrating Parliament but saying, “We have such respect for Parliament that we do not believe they would take away a citizen’s right without great clarity.”  It is not a frustration – I would not want to be party to a frustration of the Western Australia Parliament acting within its powers.

MR NUGAWELA:   Yes, we will provide copies of those decisions, your Honour.  The two points in relation to contrary intention are simply this, that, firstly, 32(7) is a transitional provision.  It cannot be seen to have impliedly repealed 37(2).  Section 37(2) says Parliament can make as many transitional and savings provisions as it likes but you cannot derive a contrary intention there from.

The second fallback position, of course, is that, leaving aside 37(2) of the Interpretation Act and one looks at the common law in relation to whether 32(7) covers the field, we say it clearly does not cover the field.  The highest that the respondent’s argument is, is that because 32(7) mentions two situations, a logical inference is that it must exclude the other.  The expressio unius approach in construing transitional provisions has been doubted in this country and for all those reasons we say that there is no contrary intention to be derived from 32(7).  Do your Honours wish me to address in relation to the ministerial statement that was made after the Act became law?

KIRBY J:   You did not object to it being handed up.

MR NUGAWELA:   All I would say in relation to that, your Honour, is that really it is not something which is referrable extrinsic material and, in any event, if that was the view of the Minister, it does not represent the will of Parliament on 5 October 1999.  Thirdly, if that was the will of Parliament, then one would have expected amending legislation to clarify the position rather than leaving it in the form that it currently has been left.  Unless your Honours have anything specific for me, those are our submissions by way of reply.

McHUGH J:   Yes, thank you.  Strictly, you have a right of reply, Mr Odes.

MR ODES:   I have made my submissions, your Honour.

McHUGH J:   Thank you, very much.  The Court will reserve its judgment in this matter and will now adjourn until 10.15 next Tuesday.

AT 11.18 AM THE MATTER WAS ADJOURNED