Gibson v Commonwealth of Australia

[2001] HCATrans 419

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P82 of 2000

B e t w e e n -

PAUL ANTONIO GIBSON

Applicant

and

COMMONWEALTH OF AUSTRALIA

First Respondent

ADRIAN VAN DER RIJT

Second Respondent

Application for special leave to appeal

McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 25 OCTOBER 2001, AT 9.55 AM

Copyright in the High Court of Australia

MR P.A. GIBSON appeared in person:  Your Honours, because of medical reasons, I would like to ask the Court’s permission for my mother, MRS T. GATELL GAMIR to represent me today and put the application before the Court.

McHUGH J:   It is rather irregular, Mr Gibson, but in the circumstances, we will allow your mother to present the argument, but it is on the understanding that she presents the argument and not you.  There can only be one person speaking.

MR GIBSON:   Yes, your Honour.

McHUGH J:   You want your to - - -

MR GIBSON:   Yes, your Honour, yes please, thank you.

MR L.A. TSAKNIS:   May it please the Court, I appear for the first respondent.  (instructed by Australian Government Solicitor)

MR D. WALLACE:   May it please the Court, I appear for the second respondent.  (instructed by Edwards Wallace)

McHUGH J:   Yes, Mrs Gatell Gamir.

MRS GATELL GAMIR:   Yes, your Honour.  The applicant, my son, applies for a special leave to appeal to the decision of their Honours Justices Malcolm, Ipp and Pidgeon, Judges of the Supreme Court of Western Australia, where on 12 September 2000 their Honours dismissed the applicant’s claim and ordered that the applicant pay costs to the respondent.  Because there are two respondents, I will refer to the first respondent.

McHUGH J:   All right.

MRS GATELL GAMIR:   The basis of this application is where their Honours made an error in law which it would involve a fundamental right when the decision was given.  Their Honours decision in relation to the issues placed before them were in respect of the first respondent where the applicant had made an election pursuant to sections 44 and 45 of the Commonwealth Employees Act and ‑ ‑ ‑

McHUGH J:   Is the problem not that, first of all, the pleading did not state that you had elected and the document that you rely on is not an election to claim damages for non-economic loss?

MRS GATELL GAMIR:   Well, your Honour, section 45 of the Act says, under common law the section would apply for non-economic loss and economic loss, but then ‑ ‑ ‑

McHUGH J:   Sorry?

MRS GATELL GAMIR:   But the common law would apply, economic loss and non-economic loss.  That would be up to the trial judge whether it applies to the person, whether he is entitled to economic loss and non‑economic loss.

McHUGH J:   But you have to elect in writing before you commence your action.

MRS GATELL GAMIR:   Yes, well, one of the errors in law that their Honours might have made is that they did not give enough weight to relevant evidences such as a claim for compensation and rehabilitation which it says this was an approved form under section 45 and if I may take the Court to this point, is the evidences which I presented was a bundle of evidences with a letter dated 5 October 2001.

McHUGH J:   Yes.

MRS GATELL GAMIR:   Now, this is a form, an approved form under section 45 of the Act which here says, page 105:

Part 9 - Your Statement

I certify that:

·    I elect to claim benefits under the Safety Rehabilitation and Compensation Act 1988.

·    The information I have supplied on this form and any attachments is complete and correct.

·    I am aware that I must advise Defence Compensation Section if I receive any money for damages.

Now, if we go to what the Justices said:

The substituted statement of claim filed by the appellant made no allegation that the appellant had made an election (whether in writing or at all as required by s 45(1).

McHUGH J:   Yes, but your statement of claim – one of the difficulties we have is that you have not set out the pleadings.  The pleadings are not in the application book.

MRS GATELL GAMIR:   The pleadings are in the Substituted Statement of Claim and in the application book – well I did explain them in the application book on my submissions.

McHUGH J:   It is not there and that is ‑ ‑ ‑

MRS GATELL GAMIR:   Well, are we dealing first because the pleadings are with the second respondent and we are dealing with the first respondent, is that correct?

McHUGH J:   No, one of the difficulties the Court has is that there is no material before us that shows us what is in the statement of claim.

MRS GATELL GAMIR:   Yes, there is material before you, your Honour.  I filed this material to the Court and is, start with page 7 “Particulars of Negligence”, page 8, “Particulars whereof are pleaded as follows”, page 9.

McHUGH J:   First of all, it is completely irregular for you to have filed this affidavit in this way.  If this is material that you rely on, it should have been in the application book.  Now, I had better ask your opponents what they say about this.

MRS GATELL GAMIR:   Your Honours, please, this is our evidences that I was ‑ ‑ ‑

McHUGH J:   Yes, but this Court does not take evidence on ‑ ‑ ‑

MRS GATELL GAMIR:   They were before the court, the lower court.

McHUGH J:   Yes, I know, but what I am saying to you is that it should have been in the application book.  Let me ask your opponents what they say.  What do you say about this affidavit that has been filed?

MR TSAKNIS:   Your Honour, the difficulty is that whilst one wants to give some latitude because we have an unrepresented client.  The difficulty is what it does seek to do is introduce a matter which is totally irrelevant.  If it was relevant, we would say we could understand and empathise, but one has to look a long way through this document to find there is no reference to an election in the documents.  So we object to this material being admitted at this stage, simply because we feel it will not assist at this juncture.  If it was thought it was going to be of an assistance, it should have been, we say, introduced at a much earlier stage.

CALLINAN J:   I have not read it.  Is this the “Substitute Statement of Claim”, is it, the document?

MR TSAKNIS:   Yes, there is a statement of claim in the materials and it ‑ ‑ ‑

CALLINAN J:   Entitled “Substitute Statement of Claim” dated 28 July 1999?

MRS GATELL GAMIR:   Yes, the last substitute statement of claim.

MR TSAKNIS:   Yes, it is, your Honour, the 28 July document, it is a rather lengthy document.

CALLINAN J:   There is no reference in it to an election, is there?

MR TSAKNIS:   No, that is right.

MRS GATELL GAMIR:   Yes, your Honour, there is.

CALLINAN J:   Where is it?

MRS GATELL GAMIR:   There is, page 6.

CALLINAN J:   I see, wait a moment, page 6.

MRS GATELL GAMIR:   Page 6.  I presume you are looking at the evidences, not the affidavit.

CALLINAN J:   What paragraph number?

MRS GATELL GAMIR:   Paragraph 34:

On 3rd December 1997 the Plaintiff lodged a Compensation Claim in to ‑ ‑ ‑

McHUGH J:   Yes, but that is not an election, that is just ‑ ‑ ‑

MRS GATELL GAMIR:   That is where the form is, that is why their Honours might misunderstood.

McHUGH J:   No, no, no, but what has been attacked is your statement of claim.  It is no good saying, “We have other evidence”, if it is not in the statement of claim.  First of all, you cannot refer to evidence that is not in the statement of claim.

MRS GATELL GAMIR:   Your Honour, on 3 December this form that we are considering to be an election, it says an election ‑ ‑ ‑

CALLINAN J:   Yes, you consider it to be an election ‑ ‑ ‑

MRS GATELL GAMIR:   That is what it says.

CALLINAN J:   Just listen to me please.  But the Full Court has held that it is not an election.  It is a different form altogether, it is not an election.

MRS GATELL GAMIR:   Your Honours, on the list of authorities, written by I think it was Judge McHugh said that the election is a choice of two, and election to either take compensation under the Act and an election to take proceedings under common law.  What in this now, that is why an election is a choice of two.  My son made an election to take compensation under the Act.  It was refused, it was denied, it went for reconsideration and it was denied.  Now, he chose to go through common law and that is what he is doing.  So they have no right the respondent to object because that would constitute an expropriation of the cause of action which is constitutional.

McHUGH J:   That is completely wrong.  You had no cause of action before the commencement of this legislation.  Your son had no – you completely misunderstand the effect of Georgiadis’ Case.  Georgiadis only applies to actions that were in existence before 1988.  Your son did not join the Department until 1991.

MRS GATELL GAMIR:   Yes, but finished in 1995, there is six years for the injuries.  He has gone through six years, you mean that the time has expired?

McHUGH J:   No, I am not saying – you were talking about expropriation and you talk about Georgiadis’ Case in your statement, in your summary of argument, but Georgiadis has nothing to do with this case.

MRS GATELL GAMIR:   But your Honour we are trying to establish here is whether he made an election correctly or whether he did not make an election.  Their Honours stated there was no election made.  The respondent ‑ ‑ ‑

McHUGH J:   Yes, but on your very document that you bring us to at paragraph 34, it indicates that you elected to claim compensation and not damages.

MRS GATELL GAMIR:   Well, the Act says an election “in writing” and he made an election in writing under the Act.

McHUGH J:   Yes.  But now this is another matter that you have to – this Court is not a general Court of Appeal.  We do not sit here to hear any case.  There are only about 70 cases a year that this Court can hear and they include the most important cases that affect the nation.  Even if we think a decision is wrong, we do not necessarily intervene, particularly in civil cases.

MRS GATELL GAMIR:   But, your Honour, if it has been an error in law, if it has been a misinterpretation of the legislation, which in this case it looks like it has because an election was made, and if it is a matter of a debate, it will have to go a debate to constitute whether there is an election or there is not an election, and otherwise involves a constitutional because what it is doing is expropriating my son, is cause of action which gives rise to initiate proceedings.

McHUGH J:   Now, the judges in the Full Court said – whether they are right or wrong I do not know and I am not going to get involved in – they said that he can still make an election.  But one thing that perturbs me about this case is that you are bringing these actions, you have lost all along the line, you have two barristers over here, your son has been ordered to pay costs and you are running up costs and if he has got any compensation rights, those costs will have to be paid out of it.  Now, you should get some legal advice and stick to it.

MRS GATELL GAMIR:   Your Honour, I have got legal advice.

McHUGH J:   If your legal advice is that you have not got a cause of action, then you ought to listen to that advice.  Otherwise, you are only incurring costs.

MRS GATELL GAMIR:   In the ‑ ‑ ‑

CALLINAN J:   Just listen, and it is a cost to the community too.  It is a big cost to the community.  You come along here, you come along to the courts and it costs the State a lot of money to provide a court and the parties on the other side are incurring costs.  In some circumstances, we can order indemnity costs, we can, which would mean you would have to pay all of the other side’s costs.

MRS GATELL GAMIR:   Your Honour, I am here because my son was badly injured in the Defence Services.  He is asking for compensation.

CALLINAN J:   No, you are here because you have not listened to legal advice or you have not read and understood properly the judgments against you so far ‑ ‑ ‑

MRS GATELL GAMIR:   The legal advice which I have received is that an election, we have to go to the Act to the legislation, section 45 said an election “in writing” and he made an election in writing.  That was a misinterpretation of the lower court.  It would have been ‑ ‑ ‑

McHUGH J:   The Full Court said it was not a misinterpretation and at the moment I cannot see anything wrong, that is error.  Now, you assert that it is.  All the judges and masters who have heard this say you are wrong and it seems to me that they are right.

MRS GATELL GAMIR:   Your Honour, in Georgiadis’ Case v Australian and Overseas Telecommunications Corporation, it was actually stated that an election meant a choice either to take compensation under the Act or to take compensation under common law.  He made an election to take compensation under the Act.

McHUGH J:   You keep saying that, but the Full Court has said it is not an election.  You have not elected in writing.  You have not written out and communicated to the Department that you elect to claim common law damages for non-economic loss, thereby foregoing your rights under the Act.  In fact, your son did the contrary, he lodged a compensation claim.

MRS GATELL GAMIR:   What is my son supposed to do? They rejected the claim, so my son is supposed to go home? That is expropriating the right under section 51 of the Constitution.

McHUGH J:   Your son, on one view, made the wrong choice.

MRS GATELL GAMIR:   What do you mean the wrong choice?  He made a choice?

McHUGH J:   The choice that people have to make under this legislation appears to be, correct me if I am wrong, that you either proceed under the Act or you proceed at common law.

MRS GATELL GAMIR:   Well, it is written here in Georgiadis v Australian on the High Court which says:

Section 45 provides for an employee to elect between compensation under the Act and damages at common law for non‑economic loss.  That section provides:

“(1) Where:

(a) compensation is payable under section 24, 25 or 27 –

so it says very clear that he has got a choice of two, either under the Employees Act or under common law.  This is written in Georgiadis v Australian and Overseas Telecommunications Corporation, page 323.

McHUGH J:   What the Act says:

(1) Where:

(a) compensation is payable under section 24, 25 or 27 –

then you –

may . . . elect in writing to institute an action –

Now, it has been held that there is no right under sections 24, 25 and 27.  So then you have the problem that you come within section 44, that:

an action or other proceeding for damages does not lie against the Commonwealth –

So it seems to me, without going into the details, that you are in grave difficulty whichever way you want to argue your case.

MRS GATELL GAMIR:   Your Honour, under the Human Rights, he is entitled to a proper hearing and to defend his case and that is section ‑ ‑ ‑

McHUGH J:   He has had a proper hearing.  He has a proper hearing ‑ ‑ ‑

MRS GATELL GAMIR:   This is not of his case.  This is obstacles that the respondents are putting before the Court.

McHUGH J:   No, they are not obstacles, they are what the law of the country says.

MRS GATELL GAMIR:   The Human Rights section 8 says everyone has “the right to an effective remedy by the competent national tribunals for acts by letting for the fundamental rights granted him by the Constitution or by law.” He has not had his case heard, that is what he is trying to do.

McHUGH J:   He has not got a case so far.  Section 44 says:

(1) Subject to section 45 -

he does not have

an action . . . against the Commonwealth –

MRS GATELL GAMIR:   Well, section 45 provides for an employee to elect.

McHUGH J:   Yes:

(1) Where:
(a) compensation is payable under section 24, 25 and 27 –

Now, on one view, you say that his claim was rejected so he does not come within 45 at all.

MRS GATELL GAMIR:   Yes.  All right, he was rejected because the respondents said he was under 10 per cent incapacitated.  All right, this is a matter for the trial judge in his court to decide.  That is not a matter for the respondent to decide.

McHUGH J:   No.

MRS GATELL GAMIR:   That would have to be decided in the appropriate court by the appropriate doctors and specialists.

McHUGH J:   Yes, according to the Full Court, there is no reason why your son cannot make an election now.  I do not know whether that is right or wrong, I do not want to get into that argument, but ‑ ‑ ‑

MRS GATELL GAMIR:   Your Honour, I am sorry, but they should…..to a debate and establish whether it is an election or it is not an election because the Full Court could have made a mistake, could have misinterpreted the law, that is an error in law.

McHUGH J:   You keep saying that, but I cannot see any ground for your argument.

MRS GATELL GAMIR:   Against the second respondent, the pleadings for the cause of action very clearly state the causes of action:  failing to request x-rays with technicality, failing to give proper diagnosis ‑ ‑ ‑

McHUGH J:   It does not state a cause of action.  From what I have seen of the statement of claim, it is absolutely hopeless.

MRS GATELL GAMIR:   Well, that could have been amended, but the causes of action are there.

McHUGH J:   You were given 42 days to amend.

MRS GATELL GAMIR:   That is not enough for a statement of claim.

McHUGH J:   Well, you say it is not enough, but it was the second time, was it not, and you were given 42 days?

MRS GATELL GAMIR:   No, the first time, there is one amendment.

McHUGH J:   Yes, then you were given 42 days.

MRS GATELL GAMIR:   The rules of the court provides for two amendments.

McHUGH J:   You were then given 42 days and you failed to comply.

MRS GATELL GAMIR:   But that was not - the ruling of the Full Court was that there was no cause of action against the second respondent.

McHUGH J:   Yes.

MRS GATELL GAMIR:   And there was cause of action, so they assessed the evidence as wrong, they assessed the material facts in the wrong way because a cause of action, for example, not to request relevant x-rays is a cause of action and this is stated in the statement of claim.

McHUGH J:   I know it is, but you have not properly laid out a statement of a cause of action.  Now, the Full Court judges spoke to you on a number of occasions, apparently, telling you that you were not understanding matters and that appears to be the case.

MRS GATELL GAMIR:   Well, the pleadings against the second respondent, which are on page 11, says:

a) Failed intentionally or unintentionally to request the previous important x-rays –

surely that is a cause of action?

McHUGH J:   No, that is not a cause of action.

MRS GATELL GAMIR:  

Failed . . . to request . . . x-rays

b) Failed to advise the Plaintiff of proper clinical management . . . 

c) Acted with gross carelessness and incompetence by failing to inform the Plaintiff of any diagnosis at all.

Failed to diagnose, surely it is a cause of action?

McHUGH J:   These are particulars that you have.

MRS GATELL GAMIR:   Well, the cause of action have court technicalities such as what does the plaintiff say that the respondent did wrong and it is here.

McHUGH J:   Yes, but look, for instance at paragraph 52:

The Second Defendant, Mr Van Der Ritj the specialist who had treated the Plaintiff, failed to disclose (on the Statement Of Questions he completed on 15/12/97) that the Plaintiff suffers from secondary arthrosis –

It is, as some of the judges said, incomprehensible.

MRS GATELL GAMIR:   So because it says that “failed to disclose (on the Statement Of Questions he completed on ‑ ‑ ‑

McHUGH J:   What?

MRS GATELL GAMIR:   Well, failed to diagnose, that is what it is meaning.  But, your Honour, the two issues here concerned is where he made an election and whether there is a reasonable cause of action, an effective cause of action.  Whether the statement of claim is wrong can always be amended because there is always another ‑ ‑ ‑

McHUGH J:   This case concerns pleadings.  This Court rarely would grant leave in what is called an interlocutory matter.  Now, your time is up and you will have to sit down, Mrs Gamir.

MRS GATELL GAMIR:   Is that mean that you would grant leave to an interlocutory matter.

McHUGH J:   No, we have on occasions, but ordinarily it is very difficult to get special leave to appeal from an interlocutory matter.

MRS GATELL GAMIR:   Well, it is my point is that it could have been a misinterpretation of the legislation, it could have been wrongly, not assessed properly, the evidence have not been assessed properly.

McHUGH J:   Yes, thank you, Mr Gamir.  Yes, the Court need not hear you.

The Court has considered this matter.  There is no reason to doubt the correctness of the judgment of the Full Court in this matter.  The application is dismissed with costs.

MRS GATELL GAMIR:   Your Honour, I am not happy with the decision.  My son is not content with the decision.  We will probably sending all the documents to International Court of Appeals.

McHUGH J:   That is a matter for you.

AT 10.18 AM THE MATTER WAS CONCLUDED