East West Airlines Ltd v Turner

[2010] HCATrans 238

[2010] HCATrans 238

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S105 of 2010

B e t w e e n -

EAST WEST AIRLINES LTD

Applicant

and

JOANNE TURNER

Respondent

Application for special leave to appeal

GUMMOW J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 3 SEPTEMBER 2010, AT 2.23 PM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR J.B. TURNBULL, for the applicant.  (instructed by Curwoods Lawyers)

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR J.A. McINTYRE, SC, for the respondent.  (instructed by Turner Freeman Lawyers)

GUMMOW J:   Yes, Mr Jackson.

MR JACKSON:   Your Honour, this is a case, in our submission, of on the one hand great simplicity and on the other hand great importance.  The issue is important because the Dust Diseases Tribunal of New South Wales has jurisdiction and a jurisdiction which is exclusive if the plaintiff’s condition is a dust‑related condition, but only if that is the case.  The issue in that regard is whether oil smoke caused by pyrolysis of engine oil is dust in terms of the Dust Diseases Tribunal Act. 

Your Honours, we have set out the legislative provisions in our written submissions at page 143, and a copy of the Act itself is the first document in our attached materials.  You will see in paragraph 7 the jurisdiction of the Tribunal is provided for by section 10(1).  It has:

exclusive jurisdiction to hear and determine proceedings referred to in section 11 –

Section 11 is then set out:

(a)a person is suffering, or has suffered, from a dust‑related condition –

Your Honours will see the remainder of that provision at the top of the next page.  The term “dust‑related condition” is a matter upon which jurisdiction is dependent.  You will see “dust‑related condition”, the definition, referred to in paragraph 10.  There are some specific conditions referred to in Schedule 1 which is set out in paragraph 11.  None of those is applicable.  The question was then whether the condition was a pathological condition that was attributable to dust.  It was not in dispute that the condition was a pathological condition of the lungs pleura or peritoneum and the question was whether it was dust. 

That term is not defined in the Dust Diseases Tribunal Act and your Honours will have seen that the primary judge held that the smoke which she ingested was a result of oil in the auxiliary power unit of the aircraft, when she was a passenger, undergoing a process of pyrolysis.  Could I say, your Honours, if I can pause at that point, the decision goes a very long way to expand, in our submission, the jurisdiction of the Tribunal.  We refer to some matters in support of that in paragraph 31 of page 148 of the application book. 

Your Honours, there are significant advantages for a plaintiff in instituting proceedings in the Dust Diseases Tribunal because of the matters to which we refer in paragraph 32, no time limit.  No damages for pain and suffering can be awarded, notwithstanding the death of the plaintiff, and the other matters that are referred to in paragraph 32.  Your Honours, the Court of Appeal took the view that no appeal lay to it because it treated the issue as being one of fact.  You will see that referred to at page 107 in paragraph 2 where the appeal provision is set out, a party is dissatisfied with a decision in point of law. 

Then, your Honours, the application of that at page 129, paragraph 67, what was said was that it was clear that what was being challenged was not a determination, that different conclusions could be arrived at as to whether or not the smoke was dust but, rather, the factual conclusion that it did constitute dust and that was not a question of law.  Now, your Honour, a factual finding it might be, but the issue with which the Court of Appeal was concerned is one which was jurisdictional.  Did the Dust Diseases Tribunal have jurisdiction?  It would only have jurisdiction if the substance was a dust.

GUMMOW J:   Was there an objection to the competency of the appeal?

MR JACKSON:   To the competency of the appeal?

GUMMOW J:   Yes.

MR JACKSON:   Your Honour, I think the answer must – could I just say, your Honour, I cannot give your Honour a direct answer to that.  I will check in just a moment.  Your Honour will see at page 49 paragraph 73 there was a question of jurisdiction raised in the Tribunal in the first instance and then there was an appeal by us, of course, to the Court of Appeal in which the issue of jurisdiction was a principal issue in the appeal.  As to the question of competency, your Honour, I did not think that the – the answer, I think, your Honours, is no.

Your Honours, if I might just say this in relation to the jurisdictional aspect of it, one might say of course there is a question of fact to be answered, but upon the answer to the question depends the question whether the Tribunal had jurisdiction.  Your Honours, if a question of that kind, which is necessarily a matter of interpreting the statutory provision, if the Tribunal does not have jurisdiction, if that is the issue, if that is not a question of law, one might ask what is?  It is a core question going to jurisdiction.  Your Honours, it is not just one of those matters one can dispose of by saying this is just an appeal on a question of law.

Your Honours, could we go on to then to say that the Court of Appeal went on to hold, as your Honours will see, at page 129 paragraph 68, in the second sentence in that paragraph, that:

were the Court called upon to decide the same question as a jurisdictional fact, no error is perceptible in the approach of the learned primary judge.

Your Honours, could I go to the approach taken by the primary judge.  Your Honours will see, if I can go to page 51, that he says in paragraph 79 “Returning to (2)”.  The reference is to subparagraph (2) of paragraph 78 on the preceding page.  He then goes on to refer to a number of definitions of “dust”.  We make a criticism of the approach taken to those definitions, your Honours, and I will come back to that in just a moment, but could I, in the sense that we say the judges have not read them properly, with respect – but your Honours will see then he goes on to say that in the end he takes the view that – this is at paragraph 86 on page 53, about line 49: 

the wording of the relevant sections of the Act encompasses smoke as a dust . . . In ordinary common parlance, dust encompasses smoke or ash.  Dust may need to be distinguished from gas, fume or vapour. 

In the end, your Honours, he goes on to treat the issue as being whether there was particular matter in the material, and you will see that in the lines of paragraph 86 that are on page 54.  Your Honours will see at paragraph 90 that he said the term “dust”:

is not a scientific or technical term.  It is an ordinary, common English word –

Your Honours, could we say in relation to that – and I am referring, Your Honours, to our written submissions at page 147 paragraph 25 – there is the reference to the passage in the Court of Appeal’s reasons where it appeared to have agreed with him, but could we just say, your Honours, that if one looks at the term “dust” and one takes the definitions to which the judge referred at page 51, the approach taken by the judge – and, your Honours, I am referring to our submission at paragraph 24 on page 147 – the judge treated, in our submission, the term “finally powdered” substance as being a term applicable, in paragraph 3 of The Macquarie Dictionary extract, as being attributable only to “earth” rather than the composite expression “earth or other matter”.  Secondly, in the reference in The Concise Oxford Dictionary we would submit it is difficult to see how

the particulate matter in the oil smoke could be regarded in any ordinary usage of the language as powder or powdered. 

Your Honours, the case is, in our submission, one where it is very strongly arguable, in our submission, that the decision on the question of whether it was or was not dust was erroneous.  The Court of Appeal, in our submission, should not have dealt with the matter on the basis that it involved no question of law and it is a matter where the consequences of the Court of Appeal’s finding are obviously capable of extension to other substances and to other circumstances and one where it is appropriate, in our submission, for the Court to determine that the potential enlargement of that Tribunal’s jurisdiction should be stopped with respect at this point.

GUMMOW J:   Mr Walker.

MR WALKER:   Your Honours, as to the last point, there is no extension possible unless there is the kind of evidence in another case, which will, no doubt, be a different case, of the kind that you see the subject of findings in application book page 52, paragraph 82.  That is the source and the only source of the factual material which could only be seen as factual upon which the finding of the Tribunal’s jurisdiction was made.  It requires there to have been dust and there there are findings of the small particles suspended in the air and eventually settling – see paragraph 83 – which, for his Honour, answered the description of “dust”. 

No point of law is involved in the question whether material factually found to be in that form answers the description of the ordinary English word “dust” or not, and common sense supports that there must be many if not most occasions when both smoke and dust is generated, for example, by the explosive collapse of some structure.  The fact that they are admixtured provides no reason whatever to overcome the beneficial purpose of the jurisdiction of this Tribunal defined by reference to “dust”. 

There are two factual matters, after all, that ground jurisdiction; one, that there be dust for which the defendant is responsible and, two, that there be the appropriate etiological link between that dust and the plaintiff’s condition.  Each of those depends upon the facts of the particular case and the fact that there may or may not have been smoke at one stage physically in conjunction with or containing the dust in question never raises a point of law.  It is for those reasons, in our submission, that their Honours in the Court of Appeal were perfectly correct to decide the matter on the basis that the appellate jurisdiction before them was not enlivened. 

Justice Gummow asked my learned friend about an objection to competency.  I am told that there was a motion in the nature of summary dismissal of a kind that is apt to raise that question which was not persisted

with, I think, as a result of case management.  It may be, in short, that because that was the issue that was going to most occupy the hearing it was thought as well to have only one hearing, but that is all I can say about that.  It means that there was no formal objection to competency that was ever heard or decided.  Whether that is the issue that decided the case, as my learned friend has ‑ ‑ ‑

GUMMOW J:   We do not need to hear you any further, Mr Walker.  Yes, Mr Jackson.

MR JACKSON:   Your Honour, may I say three things.  We would submit that on no ordinary use of language could oil smoke be regarded as dust.  Secondly, the second thing we would say, is that smoke and dust may be mixed but not in this case and, normally speaking, one would not expect to see it.  The third thing is that the decision, in our submission, of course is likely to have flow‑on effects. 

GUMMOW J:   Accepting for present purposes that the question of whether the smoke, as it has been described in this case, was dust was a jurisdictional fact, we consider there is no reason to doubt that the Tribunal has made the correct determination.  Accordingly, special leave to appeal should be refused with costs.

MR WALKER:   May it please the Court.

AT 2.39 PM THE MATTER WAS CONCLUDED