Georgiadis v Australian and Overseas Telecommunications Corporation

[1992] HCATrans 289

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4

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S77 of 1992

B e t w e e n -

CONSTANTINOS GEORGIADIS

Applicant

and

AUSTRALIAN AND OVERSEAS

TELECOMMUNICATIONS CORPORATION

Respondent

Application for removal of

cause pursuant to section 40(1)

of the Judiciary Act, 1903

DEANE J
DAWSON J

McHUGH J

Georgiadis 1 2/10/92

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 OCTOBER 1992, AT 9.30 AM

Copyright in the High Court of Australia

MR M.F. ADAMS, QC: If the Court pleases, I appear with

MS P.M. KAVANAGH. (instructed by J.M. Thompson)

MR J.D. HISLOP, QC:  May it please the Court, I appear with

my learned friend, MR J.R. WALLACE, for the

respondent. (instructed by Sparke Helmore &

Withycombe)

DEANE J:  Mr Adams.

MR ADAMS:  We have a brief note of argument. If I may hand

them up, Your Honours?

Your Honours, this is a matter in which the

applicant, until the coming into operation of

section 44 and section 45 of the Commonwealth

Employees Rehabilitation and Compensation Act 1988 had an action at common law against his employer

for negligence. Section 44 abolished that right.

In the nature of the legislation, he has now

lost all rights that he had against the respondent

with respect to non-economic loss for the injuries

he suffered. The relevant parts of the section are

set out on paragraph 2 and we firstly submit that

this is not a mere imposition of a time limitation
of action but an abolition of a right of action

without any compensation at all in the

circumstances that have occurred here.

Your Honours, a similar case has already been

referred to this Court under section 40, a matter

of Peverill v Health Insurance Insurance. I have

here copies of the decision at first instance in

the Federal Court. As I apprehended, the defendant

in those proceedings appealed to the Full Court.

The applicant then sought under section 40 of the Judiciary Act to have the matter brought into the

High Court. That application was granted. I

understand from counsel for Mr Peverill that the

High Court expects to hear the substance of the matter in February of next year. Your Honours, the

problem raised in this case is virtually identical

to the problem raised in Peverill.

DEANE J: Mr Adams, can I interrupt you for a moment? If

you could just sit down for a moment while we have

a look at what this case is about.

MR ADAMS: Certainly.

DEANE J: Yes, Mr Adams.

MR ADAMS:  Your Honours, in this case the principal problem

as we see it is the meaning of -

Georgiadis 2 2/10/92

DEANE J:  I think you were about to tell us what was

happening to Peverill in the Court.

MR ADAMS:  Yes. As I understand it, it has been set down

for hearing by this Court in February of next year.

DEANE J: And, what, you would seek to have this listed with

it, would you, if you got leave?

MR ADAMS: Yes, Your Honour.

DAWSON J:  You say, for all intents and purposes, it is an

identical point?

MR ADAMS: Quite. That is so, Your Honour, yes.

McHUGH J: It raises the taking point, really?

MR ADAMS: Exactly, yes, or the acquisition. That is the

issue, yes, that is so, as to which, as we - - -

DAWSON J: And the difficult point is not whether there is

property, but whether the Commonwealth acquired it?

MR ADAMS: Quite. That is by merely destroying a right.

DAWSON J: And that is the point?

MR ADAMS:  That is the question. We would submit, if it

were general, then we would have some real problems

but where, by a corresponding extent, the

Commonwealth estate has increased, we submit that

is acquisition. That was an argument which found

favour with His Honour Mr Justice Burchett.

DAWSON J: But it has its difficulties?

MR ADAMS: It has its difficulties, yes.

DAWSON J: Fundamentally, Your Honours, it comes down to the

extent to which the substance and form argument

applies to the meaning of "acquisition" in

section Sl(xxxi) of the Constitution.

DEANE J:  Of course, it might be suggested against you that

if you simply waited quietly in the supreme court list you might have the question resolved without

any expense to your client.

MR ADAMS:  Yes, Your Honour. In fact, this current

application is without expense to our client. But,

Your Honour, I might say, when these proceedings

were commenced, Peverill had not been listed so far

as we knew and so when it was coming on or how it

might be listed were uncertainties. I only

discovered the fact that it was listed late

Georgiadis 2/10/92

yesterday afternoon.	Your Honours, I have nothing
further to add.

DEANE J: Yes, Mr Hislop?

MR HISLOP:  The respondent's position, Your Honours, is that

it neither opposes nor supports the application.

So, I have no particular submissions to put to the

Court on the matter.

DEANE J: Thank you. Well then, we will have to take a

moment to consider the arguments against removal

for ourselves. The Court will take a brief

adjournment.

AT 9.40 AM SHORT ADJOURNMENT

UPON RESUMING AT 9.42 AM:

DEANE J: Ordinarily, the Court does not take the view that

the fact that a constitutional question is involved

in a case in a lower court, of itself, justifies an

order for removal. In the particular circumstances

of this case, however, where a similar question is

involved in a matter pending in the Court list, we

have decided to make an order that the cause be

removed pursuant to section 40 of the Judiciary

Act. Accordingly, we make such an order.

MR ADAMS: If the Court pleases.

AT 9.43 AM THE MATTER WAS ADJOURNED SINE DIE

Georgiadis 4 2/10/92