Ebb v Fast Fix Steel Fixing Pty Ltd

[2008] HCATrans 131

[2008] HCATrans 131

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S509 of 2007

B e t w e e n -

MARTIN EBB

Applicant

and

FAST FIX STEEL FIXING PTY LTD

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 MARCH 2008, AT 11.50 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR D.E. BARAN, for the applicant.  (instructed by Stacks - Goudkamp)

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR J.W. CATSANOS, for the respondent.  (instructed by Moray & Agnew)

GLEESON CJ:   Yes, Mr Walker.

MR WALKER:   Your Honours, my client wished to sue someone, not his employer, for liability at common law for injuries suffered in proceedings but for the point upon which we failed, regularly commenced in one of the competent courts.  The liability in question was one which sprang at common law from a relationship formerly falling to be described as one of proximity but nowadays particularly exhibiting both the control on one side and the vulnerability on the other side, giving rise to the common law duty of care and imposing liability if the common law standard of reasonable care was breached.  All of those matters arose independently of the statutes in question in this case.

At the heart of the argument, which was unsuccessful at both levels below, was reliance by us on the proper reading of the extent of definition of “worker” to which I shall come, but that proper reading included explicit attention by the statutory scheme, composed as your Honours know, not only of a succession of legislation, but also of a combination currently of two Acts.  It included explicit reference to the effect which the provisions of the Act would have upon liabilities of the kind that my client tried to assert in the District Court.

Under section 151, which one finds behind tab 2 in our bundle at page 35 of the Workers Compensation Act 1987, the plain statement is made, we submit, in terms insufficiently given weight by the reasons of Justice Basten in the Court of Appeal, that plain statement being that:

This Act does not affect any liability in respect of an injury to a worker that exists independently of this Act, except to the extent that this Act otherwise expressly provides.

It is the word “expressly” which in our submission must be given meaning, not mere redundancy as it qualifies the notion of provision.  Express provision, in our submission, in particular does not include provision which is found interstitially or by extended interpretation or by implication.

We can say, as we said below, that there is no provision of any of the statutes in question which gives any attention to the liability of a person in a Stevens v Brodribb situation to other persons, would‑be plaintiffs, injured by negligence.  In particular, there is no provision which says that that liability is to be cut down by reference to so-called thresholds.  In particular, there is no reference to the liability ceasing to have the vital characteristic of enforceability except pursuant, for example, to procedures involving non‑judicial determination of critical matters.

Yet, it can be seen that that is the result of the conclusion in the Court of Appeal which imposes on people in my client’s position the requirements self‑evidently devised as the balance or trade‑off cost benefit evaluation by the Parliament of providing a workers compensation scheme with compulsory statutory insurance.

Without rehearsing the arguments that your Honours have seen thoroughly canvassed in the application book, could we proceed to seek to identify error which ought to attract a grant of special leave as follows?  The particular definition is both reproduced in the application book page 27 or behind tab 4 in the bundle that we supplied at page 56, and it is that definition together with the arguably related definition of “injury” which is at the heart of the reasoning by Justice Basten in particular in his paragraph 24, application book 31.

Going then to the bundle at 56, your Honours will see that there is a Schedule 1, which is given effect by section 5, which has a heading - I need to draw to attention the heading - which is “Deemed employment of workers”.  It may be that this case could be seen to be, without explicit reasoning to this effect in the Court of Appeal, an excessive use of what might come from one possible reading of that ambiguous expression “Deemed employment of workers”, with my emphasis being on the word “employment”.

On the second page, 57 of the extract, you see item 2 of the schedule where the particular and critical words are found.  A situation which has been, as your Honours have seen, familiarly and more or less consistently dealt with since 1926 by reference to earlier English legislation originally designed to expand beneficially the scope of entitlement to workers compensation.  One sees the situation producing “for the purposes of this Act” a person to be taken to be a worker employed by the person who made the relevant contract of the relevant kind.

Now, that places critical importance on the notion of “for the purposes of this Act”.  One way of putting our argument is that those are carefully chosen words which enlist in particular the need for the interpreting court to ask in a particular circumstance whether the argument, in this case of the defendant, rather devalues the notion of purposes and simply says, that is a cliché to mean wherever you see “worker” throughout the text read the following extension.

If that were intended, a much more familiar form of definition that one finds in an ordinary definition section using usually the word “means” would have been used.  “For the purposes of the Act”, however one reads that, by the combination of the two statutes, by reference to objects, by reference to what can be seen from the scheme provided, need to include an effect on a liability of the kind we sought to assert in order for this definition to work the non-beneficial effect relied upon by the defendant.

Now, if we are right that nothing in the relevant Act or in its cognate Act says anything about the Stevens v Brodribb liability, then there was a dual reason why as a matter of interpretation the opposite outcome should have flowed from a proper reading of this legislation. First, there is no express provision to create the effect on the liability which has been produced by the Court of Appeal’s reasoning, section 151.

Second, it is not for a purpose of this Act that the defendant argues the extended definition of “worker”, self-evidently, historically, for beneficial purposes should be inserted into provisions which are not at all beneficial and indeed are not in relation to the provision of workers compensation, but rather are for the regulation and part abrogation of a common law liability existing independently of the Act.  Because that cannot be seen as a purpose of the Act in the absence of any provision to that effect, a fortiori, of course, there is no express provision to that effect.

Now, clearly, something in the nature of paramountcy needs to be determined between the provisions of section 151 and item 2, clause 2 of Schedule 1 with the extended definition which is at the heart of the case. That paramountcy, in our submission, is easily supplied and without recourse to noting that the provisions of the schedule after all are the provisions of the schedule. I do not rely upon that, section 5 means what it says, Schedule 1 has effect.

I do rely, however, upon the fact that section 151 is an express, and we would submit, emphatic provision of a kind not unknown in legislative drafting in this country, and recognising what would in any event be the tendency of an established canon, that is, judge‑made canon, of statutory interpretation. The fact that it is speaking in an area where the common law of statutory interpretation already tends in that direction and speaks in the emphatic and plain language of requiring express provision for an effect on a liability, combined, in our submission, to render the argument which found favour with Justice Basten of insufficient cogency to produce the non‑beneficial effect flowing from the extended definition of “worker” which applied in this case.

Could I remind your Honours of the way in which in particular Justice Basten reached what we would submit is the counter‑intuitive result in question?  At application book page 31 you will find in paragraph 24 strictures uttered by his Honour, with great respect, correctly and appropriately about the need to look at more than simply the extended definition of “worker”.  We accept entirely that what his Honour was doing by reasoning from the other definitions, including that of injury, was an appropriate course to follow, contextual and whole contextual reading of the statute.

However, in our submission, it does not follow from anything that his Honour notes in relation to injury or the other definitions that the extended definition has had the effect of creating the entire apparatus of employment in the case of a person deemed to be a worker employed by the person who made the relevant contract in clause 2 of Schedule 1.  That that is so is in particular clear from the non-disapproving way in which his Honour referred to a decision of the Court of Appeal of Hobbs v Costain Australia, to which reference is made by his Honour commencing at application book page 36, paragraph 40.

Hobbs is found, though I will not be taking your Honours to this, behind tab 5 in the bundle of materials.  Hobbs certainly stands for authority, not disapproved of by the Court of Appeal in this case, that one simply does not read the extended definition of “worker” throughout all the provisions which may have beneficial or non-beneficial effects on persons not actually employed but who may be deemed to be employed by the extended definition.

In particular, there is reference, one sees on page 36 about lines 43 or so, to the operative provisions considered by the Court of Appeal in Hobbs requiring consideration of something which is described in ordinary terms as a matter of fact, or a mixed question of fact and law, namely, the last day of employment as being a relevant cut-off date to determine the application of one or other statutory regime.

Now, if the reasoning of the Court of Appeal in this case be correct it is difficult to understand why what might be called the cognate concept of employment could not apply for the purposes of section 17 considered in Hobbs simply by reason of the deemed definition of a person not actually employed to be a worker employed by the person who, et cetera.  Yet, the Court of Appeal in Hobbs, noting the anomalies which would be produced, declined to take that approach, and it would appear that Justice Basten, page 37 of the application book about line 18, “Accepting that reasoning” et cetera, sees no error, let alone of principle, in construing such extended definitions in the Court of Appeal’s decision in Hobbs.

Your Honours, what that leaves is this situation.  The present case is one which, but for the matter to which I have drawn attention in Justice Basten’s paragraph 40, seems to stand for the proposition that one can, as it were, by cut and paste, put the extended definition into every use of the word “worker” in the Act, so that the word “purposes” in the extended definition terminology loses any semantic force.  You do not worry about whether it is a purpose of the Act, you simply say it appears in the text of the Act.  That is the first thing.

The second thing is, by reason of the co‑existence as a matter of authority of this case and Hobbs, there is necessarily created doubt as to the proper deployment of the idea of the extended definition being for the purposes of the Act.  There was a very, how shall I say, terse and forthright statement in Hobbs that what was argued unsuccessfully to be the application to the worker’s detriment, in that case the extended definition, simply did not serve the purposes of the Act which were otherwise characterised as involving making available workers compensation, no doubt with trade-offs in relation to the award of damages in other kinds of cases.

It is for those reasons, in our submission, that this is plainly a case that transcends the private interests of the parties before the Court.  It is of self‑evident importance that the relationship between the common law availability of fault-based claims, negligence claims, and how that relates to the statutorily regulated and deficiently compensatory no‑fault scheme, which is a workers compensation scheme, be clear and be produced by a process of statutory interpretation which continues to keep common law rights at the forefront of the way in which one construes a statute argued to have drastic effect upon them, that being in accordance with unchallenged judge‑made law as to a proper approach to statutory interpretation.

The other characteristic, which in our submission makes this suitable for special leave, is that the question of extended definitions, either generally – the deemed definitions I should say, deeming definitions – and their application throughout statutes which are in the nature of moveable feasts that are amended by different parliaments over many years, such as is characteristic of workers compensation legislation all around Australia, that question has arisen but in such a way as to produce no binding outcome in this Court’s recent decision in Klein.

In our submission, the situation in New South Wales is one which therefore is likely to be useful for an approach to cognate provisions in the future, is likely to provide guidance to those who provide drafting

instructions as well as those who draft statutes, and most importantly, will provide clarity without anomaly to the relation between common law liability and workers compensation legislation.  May it please the Court.

GLEESON CJ:   We do not need to hear you, Mr Jackson.

We think there are insufficient prospects of success of an appeal to warrant a grant of special leave in this matter and the application is dismissed with costs.

AT 12.09 PM THE MATTER WAS CONCLUDED