Fitzgerald v Smorgen Steel Pty Ltd

[2005] HCATrans 568

[2005] HCATrans 568

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P63 of 2004

B e t w e e n -

RUSSAL ERNEST FITZGERALD

Applicant

and

SMORGEN STEEL PTY LTD

Respondent

Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 5 AUGUST 2005, AT 11.40 AM

Copyright in the High Court of Australia

MR B.L. NUGAWELA:   May it please the Court, I appear for the applicant.  (instructed by Alison Hewson)

MR G.W. NUTT:   If it please the Court, I appear for the respondent.  (instructed by Jarman McKenna)

MR NUGAWELA:   Your Honours, there were undisturbed findings by the tribunal of fact below that the applicant did suffer from a pre‑existing disease.  The only question then became was whether the work that he did with the respondent aggravated that pre-existing disease to the requisite degree of significant contribution in terms of section 5(5) or, can I say, applying the mandatory legal standards in section 5(5).  The review officer saw most of these statutory factors, your Honours, as clearly requiring evidence and requiring evidence to negative a causal nexus.  Can I take your Honours to the application book at page 16, commencing at paragraph 54.  The learned review officer looked at the first two statutory factors, the duration and nature of the tasks, then in paragraph 55 looks at the third factor:

the aggravation or acceleration of the disease occurring despite the employment.  No evidence has been sighted to show that the aggravation . . . might have occurred in some other fashion –

very similar to the common law analogue in Watts v Rake and Purkess v Crittenden.  The next factor the learned review officer was in relation to hereditary factors, and he noted again, your Honours, similarly there is no evidence in relation to hereditary factors; similarly, in the vein of the negativing type of consideration in Watts ‑ ‑ ‑

GUMMOW J:   How do you relate this to the question of construction?

MR NUGAWELA:   Yes.  Your Honour, at the highest, at the end of the day the existence of a shifting evidentiary burden becomes a matter of legal policy to be discerned or informed by the nature of the statute under consideration, and the extracts of the articles that we have provided to your Honours to describe that proposition.  The relative ‑ ‑ ‑

GUMMOW J:   It is a very statute specific question really.  Where do you say Justice Murray erred in particular?  He has set out the section at page 58 of the application book and then analysed it on 59 and came to a conclusion in paragraph 31 on page 60.

MR NUGAWELA:   Can I say this in relation to his Honour Justice Murray’s reasons.  At paragraph ‑ ‑ ‑

GUMMOW J:   Now, where is the special leave point in the construction advanced and accepted by that judge and his colleagues?

MR NUGAWELA:   Can I say, firstly, that in answer to your Honour Justice Gummow’s question, his Honour Justice Murray just stated a conclusion at paragraph 30 on page 59.  His Honour said in the third line:

In a case such as this, the only onus borne by a party is the legal onus which rests upon the worker to establish the matters necessary to bring his or her claim for compensation within par (d) of the definition of disability –

We say that is a wrong posing of the question.  The correct question is having regard to the content of the mandatory factors in section 5(5), who carries the burden of proof in relation to those particular negativing factors, as the extracts of the articles we have put before the Court shows, that when considering the question of burden of proof, your Honours, it has to be done on an issue-by-issue basis.  To state the ultimate obvious trite proposition that he who brings a claim carries the ultimate burden does not advance or answer the question.  Having arrived at that conclusion then, his Honour restated it at paragraph 31.

Can I say with respect that her Honour Justice McLure simply adopted his Honour Justice Murray’s reasoning at paragraph 36, when her Honour said:

I do not accept that submission for the reasons given by Murray J.

In answer directly then, your Honours, to the second part of your Honour Justice Gummow’s question, where is the special leave point, we say there are at least three special leave points.  This is a statute which is not peculiar to Western Australia.  It is a statute which is replicated in almost identical terms in Victoria.  There are analogous provisions throughout both of the Commonwealth statutes, the seafarers’ legislation and the Safety Rehabilitation Act, so it is a point of public importance nationally.  It is also a point of public importance in Western Australia, as well as nationally, given, your Honours, the obvious abrogation of access to common law rights and the concomitant need to look at other forms of compensation.

The other point of importance is that it is important for the administration of justice in this particular case where you have undisturbed primary findings as to the existence of a disease, a pre-existing disease, and the only question became the application of a legal standard to the particular matters before the decision-maker.

The other matter that the review officer considered of course was the precise time of commencement of the symptoms.  The learned magistrate got it right and said that it was irrelevant to the question as to whether the contribution was significant in terms of section 5(5), and the Full Court upheld the learned magistrate’s reasoning in that respect.  Of course the last matter is this notion of what in fact might have motivated the worker putting in the claim, and we say that is entirely irrelevant to the statutory test.  The review officer found that ‑ ‑ ‑

CALLINAN J:   Well, is it entirely irrelevant?  Are the matters set out in the subsection a catalogue?  They are not a catalogue, are they?

MR NUGAWELA:   Your Honour Justice Callinan is correct, I accept that.

CALLINAN J:   The ultimate question is whether there was a contribution, and in deciding that question the Tribunal must look at the matters in (a) to (f), but surely it may look at other matters.

MR NUGAWELA:   We entirely accept that.  The way the statute is set out does not make the inquiry limited to those factors enumerated there.  What we say is that in relation to this case the review officer made a specific finding it was a live issue as to whether this was a false claim, and having made that finding that this was not a false claim, quite interestingly concluded that some inferences may be drawn as to the motivation in putting in a claim.  Now, we say this.  The claim is either false, that is brought about with a malicious intent, or it is not false.  Having made that specific finding, that the claim was not a false claim, that was the end of the matter.

Can I use the words – and I suppose to a large extent this goes to our fallback ground, which is ground 2, the notion of adequacy of reasons.  Can I borrow the words of his Honour Justice Kirby when his Honour was dissenting in Soulemezis.  The introduction of this notion ‑ ‑ ‑

GUMMOW J:   That is not a happy foundation.

CALLINAN J:   Not a good start with a dissenting Judge.

MR NUGAWELA:   I would also rely on what his Honour Justice McHugh, who was in the majority, said.

GUMMOW J:   Anyhow, what is the point?

MR NUGAWELA:   The point is this.  It was of highly dubious relevance to the statutory considerations being applied, this notion of what was his motivation in putting in a claim?  The point is that it was not a false claim. 

There was a finding of a pre-existing disease.  The only issue is, “Well, let us look at this notion of significant contribution”.  I do not think I can advance the matters any further than described, your Honours. May it please the Court.

GUMMOW J:   Thank you, Mr Nugawela.  We do not need to call on you, Mr Nutt.

We see no reason to doubt the correctness of the decision of the Full Court of the Supreme Court of Western Australia and special leave is refused with costs.

AT 11.49 AM THE MATTER WAS CONCLUDED