Fletcher International Exports Pty Ltd v Lott & Anor

[2010] HCATrans 240

[2010] HCATrans 240

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S108 of 2010

B e t w e e n -

FLETCHER INTERNATIONAL EXPORTS PTY LTD

Applicant

and

DANIEL JAMES LOTT

First Respondent

SCOTT & TRACEY SWAIN, GEOFFREY & ROSALYN GAE SWAIN, DARREN & LINDA SWAIN, ANDREW & ROSALIE HEWITT, T/AS “GLENAM FARMING PTY LTD”

Second Respondents

Application for special leave to appeal

HEYDON J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 3 SEPTEMBER 2010, AT 3.04 PM

Copyright in the High Court of Australia

MR P. MENZIES, QC:   If your Honours please, I appear with my learned friends, MR D.G. SAUL and MR J.S. EMMETT, for the applicant.  (instructed by Leigh Virtue & Associates)

MR B.W. RAYMENT, QC:   May it please your Honours, I appear with my learned friend, MR D.A. BAKER for the first respondent.  (instructed by Firths The Compensation Lawyers)

MR I.D.M. ROBERTS, SC:   May it please your Honours, I appear with my learned friend, MR G.T. YOUNG, for the second respondent.  (instructed by Moray & Agnew)

HEYDON J:   Yes, Mr Menzies.

MR MENZIES:   Your Honours, might I first raise one matter which has been brought to our attention by the Registry -to correct a clerical error.  We seek your Honours’ leave to amend our application to change the name of the applicant to “Fletcher” in the singular rather than “Fletchers”, plural.

HEYDON J:   Is there any opposition?  Leave is granted.

MR MENZIES:   Thank you.  Your Honours, this application raises a straightforward point and it is this, that a deputy president of the Workers Compensation Commission sitting on appeal from a decision of an arbitrator decided an issue which appears to have been at least assumed in its favour by the applicant in its submissions below and with respect to which neither the applicant nor the respondents addressed themselves directly.  Certainly there was no demur from what appears to have been the applicant’s position. 

What occurred was this.  I should take it a little further.  When the matter went on appeal to the Court of Appeal this issue was raised directly and one finds it in appeal book 63 as ground 2.  It was that the Tribunal itself, sitting on appeal, considered and determined an issue of section 9A of the Workers Compensation Act:

in the absence of such issue being properly considered or determined between parties below, either during the arbitration ‑

which was the first instance proceedings -

or in the appeal papers, after finding that an injury pursuant to section 4 did occur during the 1st respondent’s employment with the 2nd respondent on 12.07.05 -

When the matter came on for hearing in the Court of Appeal the focus of the appeal there was an assertion of denial of procedural fairness arising from a failure to grant a right to have oral argument.  This appeal point was rolled up, as the Court of Appeal observed, at appeal book 76 at paragraph 24.  It is said, just before line 30 that the appellant:

wrapped grounds 1, 2 and 3 up together, asserting error in not affording an oral hearing and using the Acting President’s application of s 9A to support error in not affording an oral hearing.

The Court of Appeal then dealt with those issues further at 81 at paragraphs 42 and following where, dealing with procedural fairness, the Court observed:

that the requirements of procedural fairness may be modified by statute ‑

There is no issue about that:

Further, procedural fairness is generally satisfied by the opportunity to put evidence and submissions before the tribunal, and Fletcher had the opportunity.

It then turned to deal with the procedure before the Commission, setting out the relevant parts of the statute.  Then at paragraph 48 at appeal book 83 the Court of Appeal returned to this issue and observed:

Secondly, it said that the error made by the Acting President in the application of s 9A of the WC Act showed the need for an oral hearing, at which proper assistance could be provided and Fletcher’s position in relation to the application of s 9A could be adequately explained.

The Court of Appeal dealt with those submissions in the rolled‑up way in which they had been put up, the consequence of which was that it did not really deal with appeal ground 2 directly.  So that what we assert was the denial of procedural fairness in not giving an opportunity to be heard on the section 9A issue remained undetermined.

Now, just some simple background facts - there were two events which took place, one in 2002, one in 2005.  There were two employers - this applicant, Fletcher, in 2002 and the second respondent, Glenam Farming, in 2005.  The scheme which was being considered by the arbitrator who dealt with it in the first instance is this.  Pursuant to section 9 of the Workers Compensation Act:

A worker who has received an injury . . . shall receive compensation from the worker’s employer –

Section 4, and that is set out at appeal book 43, defines “injury” to mean:

personal injury arising out of or in the course of employment -

Section 9A, which is the one to which I have been referring, puts a limitation on that entitlement in that:

No compensation is payable . . .  unless the employment concerned was a substantial contributing factor to the injury.

If that occurs, if that finding is made, and there is more than one injury then those injuries are to be apportioned pursuant to section 22.  Before the arbitrator - the arbitrator found no injury occurred in 2005 and did not therefore, because there was no need to, proceed to deal with either section 9A or section 22.  The arbitrator’s finding is at application book 7 at paragraph 19 and plainly the context was – at that point he was dealing with injury, as appears from the rubric to that effect on the preceding page.

When the matter went on appeal to the deputy president, the deputy president found injury.  So that then raises the question of what one does next.  Injury having been found, the next question which is raised then, the worker having suffered injury in the course of or arising out of the course of his employment, does the employment substantially contribute to that injury. 

So the circumstance then found was an event in 2002 when the worker was employed by the applicant; an event in 2005 where the worker was employed by Glenam; a finding by the deputy president that the incident in 2005 gave rise to injury; the injury was arising out of and in the course of his employment because it happened whilst he was working.  Then question 9A arises for determination.  He then turned and dealt with the section 9A question specifically. 

On the issue of injury and whether there was a need to send the matter back for further assessment, he had decided – and this appears at application book 90 and 118 - that of the issues of capacity and injury the state of evidence was such it was unsatisfactory and it was therefore necessary for the matter to be remitted for further determination by another arbitrator on those issues.             However, on the issue of whether the injury in 2005 was substantially contributed to by his employment – section 9A - he proceeded to deal with that himself. 

Now, our submission is that in doing so he failed to afford the applicant procedural fairness and he failed in this way.  It appears, when one considers the submissions below, and I will take your Honours to them in a moment, that the applicant appears to have assumed the point in its favour.  So that if one turns to application book 24, there appears the second‑last page of submissions made by the applicant on the appeal from the decision of the arbitrator and at ground E makes submissions which can only be made good if one assumes that there has been a finding arising under section 9A in favour of the applicant.

So the applicant then proceeded, it would seem, upon that assumption.  What has happened is that if one looks at ground E, there is a movement directly from injury, having been satisfied as a finding in section 4 and section 9, to apportionment, section 22, without any direct consideration of section 9A at all.  In other words, it is proceeding as if section 9A had been assumed by the applicant in its submissions in its favour.

Now, that was not then the subject of any demur from the respondents so that no then further argument took place before the deputy president on appeal concerning that issue.  It is not to say that section 9A was not adverted to at all in any way, but it is that the applicant and certainly, it would appear, the other parties, proceeded as if that issue was not one for further consideration at that point.

What the deputy president should have done, in our respectful submission, he having then proceeded to decide that issue adversely to the applicant was either, if he had that in his mind, bring the parties back, raise that issue so that appropriate submissions could be made upon it, or alternatively, refer that issue, as well as the other one which he had already referred, back for further determination by an arbitrator at first instance.

That is the simple point that the applicant seeks to make.  It is a matter, in our submission, where the demands of the administration of justice require that the matter be corrected by your Honours.  It is a matter of some general significance inasmuch as the Workers Compensation Commission in its various forms, now proceeding in an informal way where administrative procedures or quasi‑judicial procedures are the order of the day, that the officers of the Workers Compensation Commission, namely the arbitrators and those who hear appeals from the arbitrators should be astute to ensure that procedural fairness is afforded to those who appear before it, be they applicant or worker or employer.

Finally, your Honours, if your Honours are disposed to accede to the application then I have instructions that the applicant would consent to an order where it paid the costs of the respondents in any event.

HEYDON J:   Yes, thank you, Mr Menzies.  Mr Rayment, we need not trouble you and we need not trouble you, Mr Roberts.

We are of opinion that the application for special leave to appeal should be dismissed on the ground that there is no sufficient reason to doubt the correctness of the Court of Appeal’s orders.  The application is dismissed with costs.

Adjourn the Court to 10.15 am on Tuesday, 21 September 2010 in Canberra.

AT 3.20 PM THE MATTER WAS CONCLUDED