Grljak v Trivan Pty Limited

[1995] HCATrans 128

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S163 of 1994

B e t w e e n -

IVAN GRLJAK

Applicant

and

TRIVAN PTY LIMITED (IN LIQUIDATION) (Formerly known as Trivan Building Services Pty Ltd)

Respondent

Application for special leave to appeal

DEANE J
TOOHEY J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 MAY 1995, AT 9.58 AM

Copyright in the High Court of Australia

MR T.E.F. HUGHES, QC:   May it please the Court, I appear with my learned friend, MR M.J. PERRY, for the applicant.  (instructed by Taylor & Scott)

MR C. GEE, QC:   May it please the Court, I appear with my learned friend, MR G. ELLIS, for the respondent.  (instructed by Colin Biggers & Paisley)

DEANE J:   Yes, Mr Hughes.

MR HUGHES: Your Honours, this application raises a short point concerning the construction of section 151Z(2) of the Workers Compensation Act.  That section is contained in Division 3 of Part 5 of the Act.  It is conveniently set out at page 106 of the application book over on to page 107.  Your Honours will be familiar with the facts from the statement of them in the outline.  Perhaps I should just focus attention on the particular provisions.  Subsection (2) says:

If, in respect of an injury to a worker for which compensation is payable under this Act:

(a) the worker takes proceedings independently of this Act to recover damages from a person other than the worker’s employer -

Mr Grljak did so -

(b) the worker also takes or is entitled to take proceedings independently of this Act to recover damages from that employer,

the following provisions have effect:

(c) the damages that may be recovered from the person by the worker -

that is from the person other than the employer -

in proceedings referred to in paragraph (a) are to be reduced by the amount by which the contribution which the person would (but for this Part) be entitled to recover from the employer as a joint tortfeasor or otherwise exceeds the amount of the contribution recoverable -

Then (d) is in a sense definitive of part of (c):

the amount of the contribution that the person is entitled to recover from the employer as a joint tortfeasor or otherwise is to be determined as if the whole of the damages were assessed in accordance with provisions of Division 3 as to the award of damages -

So, as we have endeavoured to say in our outline, paragraph (c) requires a comparison between two sums of money, one a sum of damages notionally recoverable at common law but only hypothetically so because of the impact of this Act.  That is one integer in the comparison.  The other integer is the amount of contribution that he is entitled to recover from the employer as a joint tortfeasor or otherwise.  It is the excess that is the subject of a reduction.

I am going to hand up if I may three bits of paper to your Honours:  first of all, the outline of our argument in the Court of Appeal, a print of section 51C of the Law Reform Act, and some further propositions that are really a distillation of what we have tried to say in our outline.  The reason why I am handing up the outline of the argument in the Court of Appeal is simply this:  in the Court of Appeal it was a very large element in our argument that there was a necessary relationship because of the use of the words in (c) “as a joint tortfeasor or otherwise” between that paragraph and, indeed, paragraph (d) and section 5 of the Law Reform Act.  The criterion of liability to contribution in section 5(1)(c) of the Law Reform Act is that the person sued for contribution be a person who is, or if sued would have been, liable to pay damages to the plaintiff.

Our argument, which is expressed in the outline and was put to the Court of Appeal, was that if in applying paragraph (d) it turns out because of the limitations on damages contained elsewhere in Division 3 of Part 5 of the Act the plaintiff could not have recovered damages against his employer, that employer is not a tortfeasor from whom the contribution is recoverable because of the operation of section 5(1)(c) of the Law Reform Act.  Therefore, there is no occasion for the application of the comparison specified in paragraph (c).  The occasion for the comparison simply does not arise.

That point was put to the Court of Appeal.  It is not noticed in the judgment, but if I may refer your Honours to the outline - I think it is paragraph 7 - it appears in the outline.

TOOHEY J:   That is the document that is headed “OUTLINE OF ARGUMENT IN SUPPORT OF PLAINTIFF’S APPEAL”?

MR HUGHES:   Yes, your Honour.  That was the outline of argument presented to the Court of Appeal.  Paragraph 7 on page 3 endeavours to make the point.  Putting it as shortly as I can, looking at paragraph (c), there is no amount of contribution recoverable where there is no employer who, if sued, would have been liable to pay contribution.  In this case the employer was, by the proper application of the provisions of Division 3 of Part 5, not liable to pay damages to the plaintiff.

Putting the matter in a slightly different way, we make these submissions.  One, the recoverability of contribution from the employer as a joint tortfeasor or otherwise, a concept that is necessarily introduced into (c) and (d), depends upon his being a tortfeasor who is, or would have been if sued, liable to the plaintiff in respect of the damage for which the plaintiff sues the defendant; that is, the defendant who is the claimant for contribution.  Two, in a case where the employer would, if sued, not have been liable to the plaintiff because of the operation of paragraph (d), such employer is not a tortfeasor from whom contribution is recoverable by the defendant within the meaning of paragraph (c), the defendant in this case of course being the non‑employer defendant.

Proposition three, the operation of paragraph (c) is predicated upon the recoverability of contribution from the employer.  If the assessment of the whole of a plaintiff’s damage in accordance with Division 3 produces the result that no damages are recoverable by the plaintiff from the employer, the latter is not a tortfeasor to whom liability for contribution attaches; in other words, no contribution is recoverable within the meaning of (c).  That is the short point.

The reason why we say that it is an appropriate case for special leave is shortly this, your Honours.  Subsection (2) is an important element obviously in the scheme of 151Z which is a scheme of considerable importance in the framework of the legislation as regulating inter se the rights of injured workers, employers and third party non‑employer entities that can be sued for damages at common law independently of the Act.

TOOHEY J:   Is the problem only going to arise where the ceiling operates to preclude an award of damages below a certain figure?

MR HUGHES:   Yes, your Honour.  It is a problem that arises when the threshold is not surmounted.  But of course it is a problem that prospectively is apt to arise in the future.  As your Honours know from Correia Case in which special leave was granted and the appeal was allowed, the case about the table of injuries, this is important legislation of widespread application.

DEANE J:   Mr Hughes, was not anything at all said about this point?  I seem to recall having read some discussion of it in one of the judgments.

MR HUGHES:   There was really only one main judgment, your Honour.  It is true to say that section 5(1)(c) of the Law Reform Act was mentioned in the judgment.

DEANE J:   What about the judgment of Justice Cole?

MR HUGHES:   I am sorry, I was talking about the judgment of the Court of Appeal.

DEANE J:   Was it dealt with in Justice Cole’s judgment?

MR HUGHES:   No, it was not, your Honour, not this point.

DEANE J:   Was the point taken before?

MR HUGHES:   I was not there, your Honour.

DEANE J:   You have no doubt got a junior who might be able to help.

MR HUGHES:   No, it was not taken, but it was distinctly taken in the Court of Appeal and it really is a question of statutory construction which does not depend upon facts other than facts that are common ground.

DEANE J:   The argument would be, would it, as you apprehend it, whether a ceiling on damages is, as it were, something which disentitles the bringing of an action for relevant purposes?  I have probably put that badly.

MR HUGHES:   The point we would try to summarise ‑ ‑ ‑

DEANE J:   I was thinking more of the way it would be put against you.

MR HUGHES:   Yes.  The point as we would venture to see it is this.  Is a worker plaintiff who in the exercise of a sound judgment by his advisers abstains from suing his employer, because if he does sue he will not recover damages against that employer, to be penalised by the operation of this provision?  We say that the meaning of the words “contribution recoverable” in paragraph (c) are plain; there is no ambiguity.  But if contrary to our submission there is ambiguity, then the ambiguity would be resolved, we submit, in favour of the worker plaintiff by resort to the principle that you construe a statute so far as possible where it is ambiguous to avoid unnecessary derogation from common law rights - a well‑known principle.

DEANE J:   Just to make sure I understand it, the argument you would apprehend might be put against you would be, would it, that a ceiling which the majority decision in Stevens v Head, I think it is, would indicate is a procedural provision cannot properly be seen as precluding the worker being entitled to take proceedings?

MR HUGHES:   The argument based on entitlement to take proceedings independently of this Act against the employer is really a subsidiary argument.  As we put in our endeavour to formulate the questions in the most recently filed outline, the argument as to the meaning of “entitled to take proceedings against his employer independently of the Act” is an argument which proceeds upon the proposition that entitlement in the context of these provisions means not just an entitlement to commence proceedings, but to commence them and carry them through to verdict.

TOOHEY J:   So that the third party who is held as between the third party and the employer to be 10 per cent responsible on your argument can recover no contribution from the employer in a case where the ceiling operates to preclude an award of damages by the worker against the employer?

MR HUGHES:   Yes, that is so, your Honour.  The non‑employer defendant cannot recover contribution because the employer if the ceiling applies is not a tortfeasor within the meaning ‑ ‑ ‑

TOOHEY J:   Yes, I understand the arguments.  The result of the argument is as I have stated it?

MR HUGHES:   Yes, your Honour.  We would submit that it is a point that is of sufficient importance, given that it arises out of a statutory scheme such as this one, to justify the grant of special leave.  I suppose it could also be said, your Honours, that if one reads on to paragraph (e) - and I do not want to go into this in detail because of constraints of time - the interpretation of (c) and (d) or their combined effect could well have an impact, a sort of consequential impact, on the meaning to be attached to paragraph (e) which is in itself a very dense and elliptically expressed section.

DEANE J:   Quite apart from the problems of this Court getting involved in the construction of particular subclauses of subsections of a State Workers Compensation Act, there is a real problem in our doing it in a context where

we have not the benefit of the views of anyone in the courts below.  I appreciate your answer to that might well be that, so far as the Court of Appeal is concerned, that is not your fault.

MR HUGHES:   Well, it is not.

DEANE J:   But it is a problem from our point of view.

MR HUGHES:   As against that, your Honour - this is a very short point - we would submit that, given the interaction between section 5(1)(c) and paragraphs (c) and (d), the argument against the decision of the Court of Appeal is, with respect, a strong one.  But it is such a short point that the disadvantage, if there be one, in not having the benefit of an expression of view by the Court of Appeal is outweighed by the shortness and comparative clarity one way or another of the point.  That is all I can put.

DEANE J:   Thank you, Mr Hughes.  Yes, Mr Gee.  Mr Gee, can I suggest you direct yourself first to the suggestion that the point was squarely raised in the Court of Appeal and not dealt with at all in the judgment of the Court of Appeal.

MR GEE:   I am obliged to your Honour for that indication.  I have not previously been involved in the matter at any level.  The point which my learned friend put that caused your Honour to say that was in fact mentioned to me as a possibility only this morning.  It follows that anything I can say is limited in usefulness to the Court, and I really would not want to spend good Court time guessing about what might or might not have happened below.

DEANE J:   Unless you have got something to say or something in the judgment of the Court of Appeal to point to, paragraph 7 of the outline in that court seems, as it were, to put Mr Hughes ahead on that aspect of the matter.

MR GEE:   Yes.  I would prefer to move to the next stage, your Honour, namely assuming against me that the point was raised below and not dealt with, there is an adequate answer sufficient to render leave an undesirable course or an inappropriate course.

DEANE J:   Needless to say I am not trying to stop you, but that is a rather inappropriate, really “shoot from the hip” procedure so far as this Court is concerned in dealing with an act such as this, which is ‑ ‑ ‑

MR GEE:   Your Honour, with respect, in general terms that would be correct, but may I respectfully adopt my learned friend’s submission when faced with something a little similar a few minutes ago, namely that the point is short and easy, but apply it against him.  That would be what I would seek to do in relation to that proposition, namely that if the Court of Appeal had turned their minds, or if this Court came to turn its collective mind, to the question, it would quickly be seen that the whole argument is based on trying to elevate the expression “recover from the employer as a joint tortfeasor or otherwise” into something which it simply is not.

My friend’s argument, with respect, depends on the proposition that recovery as a joint tortfeasor, that is against the employer as a joint tortfeasor, is prescriptive and exclusive.  In fact, in our respectful submission, the language of paragraph (c) merely adumbrates a joint tortfeasor recovery as one of a number of legal possibilities, hence the expression “as a joint tortfeasor or otherwise”.  Other possibilities that occur to one, your Honours, are, for example, recovery against the employer pursuant to some indemnity or even, given the imaginative processes that are at work at various levels, possibly recovery under some provision of the Trade Practices Act, since personal injury damages as a consequence of breach of section 52 is not apparently legally an impossibility.

Hence the proposition that is advanced depends on an absolute connection between the words I have mentioned and the operation of section 5(1)(c).  They are simply there as descriptive examples, or joint tortfeasor recovery is an example of one of the ways in which the recovery might be made.  In our respectful submission, once that is seen, then the argument truly does fall to the ground because, if you then ask yourself the simple question, “How much is the person entitled to recover from the employer as, for example, a joint tortfeasor?”, the answer forced on one by the facts of this case is, “As it happens, nil”.  There the matter rests.

Your Honours, my learned friend has accepted that the moment the plaintiff, the injured worker, would be entitled to a dollar of recovery against the negligent employer, it follows he has accepted that his argument has no basis.  What his argument, in our respectful submission, overlooks in the case of the nil recovery is that in this case we know that the employer was indeed a joint tortfeasor.  He was held 10 per cent to blame.  It follows from that that the injured worker had a completed and perfected cause of action against him.  What stood in his way was a bar, that is a bar which said, “Because you have not recovered enough money, you can’t have anything”.  That invites an analogy with, say, a statute of limitations where there is a right but the remedy for some reason is prevented.  Hence, seeing it in that light, in our respectful submission, you easily pass the threshold problem of (2)(b):

the worker also takes or is entitled to take proceedings -

Indeed, he is.  He has a completed cause of action.  You also solve the problem of the words “entitled to recover from the employer as a joint tortfeasor or otherwise” because the employer was a joint tortfeasor.  Once you have got past that, you then move to the next stage of the inquiry, namely:  what is the effect of the bar?

Our learned friends have made something, your Honours, of the fact that the injured worker made a wise decision not to proceed against the employer, the wisdom being demonstrated, it is said, by the fact that, as things turned out, the damages did not enable him to pass the threshold.  But with great respect, the effect is the same whether he had sued the employer or not.  That is a red herring.  If he had sued the employer, he would have got a finding, useless to him, that the employer was indeed negligent vis‑a‑vis him and the third party would have got a finding that the employer was 10 per cent to blame but, because of the scheme of the legislation, the injured worker would have in fact recovered nothing against the employer.  So the wisdom point or otherwise which is linked to my learned friend’s argument about the operation of the joint tortfeasor’s legislation is, in our respectful submission, of no assistance.

DEANE J:   Except your argument does involve a little bit of constructive thinking, does it not, in that in one sense anyone is entitled to take proceedings against anyone else, and one can say that the proceedings will fail completely or one can say that the proceedings will fail because, notwithstanding there was a good cause of action, the statute of limitations applies and so on.  Your argument does involve reaching a decision as to where is the sensible place to draw the line in the context of the Act.

MR GEE:   With great respect, so does my learned friend’s.  He relies on an ex post facto result as much as your Honour the presiding Justice has just put to me; in fact, more so.  Provided we can show, as we can on the very facts of this case, that the injured worker had the best entitlement of all, namely a good cause of action against his employer - he must have had for the employer to be 10 per cent liable - then everything, in our respectful submission, follows.  So hence, in our submission, no constructive thinking, just looking at the facts of the particular case.

Your Honours, there were a couple of other points, not long ones, that I wanted to put in addition to what appears in our outline, but I will

refrain from doing so given that I understood Justice Deane to be asking me to confine myself in that way.

DEANE J:   Not really, Mr Gee, but, as I understood it, Mr Hughes, no doubt wisely, confined his application to this point.  I think he can expect that any favourable effect of his application will be very carefully confined to this point.

MR GEE:   The other difficulty that we might put is this, your Honours, that we have put in our outline, we respectfully submit, a rationalisation of the legislation.  It is true that it involves a departure from traditional concepts here, but we have put submissions attempting to give that a rational basis and I will not repeat them.  But if one takes the other side of the coin and puts that in the case where there is a failure on the part of the injured worker to pass the threshold, hence no right in damages against the employer, hence no amount recoverable by the negligent third party, the result is that the third party is responsible for 100 per cent of the damages without the very reduction which the opening words of subparagraph (c) require in terms to be set off against the successful plaintiff’s verdict.  That would be to do, in our respectful submission, real violence to the concept of paragraph (c) which opens with a directive to the tribunal that, rightly or wrongly, the plaintiff’s damages are to be reduced by reference to some process.  Those are our further submissions, your Honours.

DEANE J:   Mr Gee, before you sit down could I ask you - and this is also addressed to Mr Hughes - is anyone in a position to tell us whether any objection was taken in the Court of Appeal to a point which had not been raised before the trial judge being raised for the first time?

MR HUGHES:   I can tell your Honours.  I argued the matter in the Court of Appeal, as your Honours will have gathered, and no objection was taken.

DEANE J:   Thank you.

MR GEE:   I am in a position to assent to that, your Honours.

DEANE J:   Thank you, Mr Gee.  Yes, Mr Hughes.

MR HUGHES:   Your Honours, the simple question in this case, although to solve it one has to read some very elliptical statutory language ‑ ‑ ‑

McHUGH J:   That is one of the problems of taking this case on.  Nearly 40 years ago Sir Owen Dixon said in respect of an almost identical piece of legislation that it was a piece of law reform that was itself urgently in need of law reform.

MR HUGHES:   Knowing, as one does, of legislative inertia, particularly in view of recent political events, one would venture to suggest - this is guesswork - that this is going to remain on the statute book for some time.

DEANE J:   One could have a bit of sympathy in that every time the legislature interferes in this field, the courts seem to turn around what it intended to do and pick extraordinary holes in it.

MR HUGHES:   Everybody in the Court of Appeal agreed with the proposition that it was very difficult to deduce in detail any philosophy or policy behind this.  I confine my submission to the proposition that these provisions were designed to discourage a worker plaintiff from suing his employer and concentrating his fire on a non‑employer defendant in a situation where, if he sued his employer, he would gain a recovery.  The argument that is presented against us - and the battle lines are clearly enough drawn - involves construing the words in (c) “the amount of the contribution recoverable” as including nil, even though in (d) the employer’s liability is to be determined by the application of a group of sections which can result in him having no liability and therefore not being within the meaning of paragraph 5(1)(c) of the Law Reform Act, copies of which your Honours have, a tortfeasor who, if sued by the plaintiff, would have been liable to the plaintiff.

It is not altogether correct, in my respectful submission, to say the situation would be different in this case if the plaintiff had recovered one dollar against the employer.  He could not because of the statutory thresholds.  The words in (c), “joint tortfeasor or otherwise”, are clearly referential to that expression as used in paragraph 5(1)(c) of the Law Reform Act.  Of course, as my learned friend says, it includes the case of an indemnity, a liability to contributions because of an indemnity.  But it is difficult to avoid the conclusion that that expression refers exactly to the criterion of liability to contribution set out in that section of the Law Reform Act.

DEANE J:   Mr Hughes, before you finish can I ask you this:  is the point as set out in paragraph 7 of your submissions in the Court of Appeal still the precise point that you wish to agitate, or would you need to vary the wording?

MR HUGHES:   We have propounded the precise point in our outline of argument in paragraph 1.1 and 1.2 on pages 1 and 2.  The two points are, in order of importance, the relationship between the Law Reform Act and paragraphs (c) and (d) and the entitled to sue point.  My learned friend said it is a different point.  It is not, with respect.

DEANE J:   So you would now formulate it as in 1.1 and 1.2?

MR HUGHES:   Yes, your Honour.

DEANE J:   But you see that as raising nothing that was not covered by your point 7?

MR HUGHES:   Exactly.

DEANE J:   And 1.1 and 1.2 contain nothing that was dealt with by the Court of Appeal?

MR HUGHES:   1.2 was, your Honour.

DEANE J:   I understand that.  Can I ask you a final question, Mr Hughes, and this is just something that is going through my mind.  If the Court were inclined to grant leave to appeal confined to this point and essentially for the reason that you have put in the forefront of your argument, why would not the appropriate course be to deal with the appeal immediately and send the matter back to the Court of Appeal to deal with that point?

MR HUGHES:   In other words, your Honour has in mind, tentatively of course, that the Court might grant special leave?

DEANE J:   And I am only one of three.

MR HUGHES:   Yes, quite - might grant special leave.

DEANE J:   Deal with the appeal.

MR HUGHES:   Deal with the appeal and, without resolving the question, remit to the Court of Appeal so that ‑ ‑ ‑

DEANE J:   Without resolving the question, allow the appeal, set aside the orders of the Court of Appeal and remit the matter to that court so it can deal with the question of construction that you wish to agitate.  Allow the appeal on the basis that the point had not been dealt with.

MR HUGHES:   I could not oppose that course.  It would not be our preferred course, but of course we are in the hands of the Court.  Three quarters of a loaf is better than no bread, your Honour.

DEANE J:   It would probably be cheaper and quicker than an appeal to this Court.

MR HUGHES:   Yes, indeed.  Your Honour, we of course accept that as a possible solution without demur.

DEANE J:   Mr Gee, I know you would maintain that it never reached the stage of considering what we should do but, since we need to determine what to do, is there anything you would wish to say about that if we did reach that stage?

MR GEE:   Yes.  May I put another viewpoint, your Honour.  The threshold of that position is that what is now put to the Court is regarded for one reason or another as being sufficient for a grant of special leave.  If the matter goes back to the court below and they consider the point, the probability is - I do not think I could put it higher than that - that we would be here again with one side or the other wanting special leave from their agitation and consideration of the very question that your Honour the presiding Justice is contemplating sending back.

McHUGH J:   Not necessarily, because the hypothesis would be that leave is granted because there has been a miscarriage of justice in this particular case by reason of the court’s failure to deal with this point.  Speaking for myself, and I think generally, questions of statutory construction, unless they affect the nation, are matters for the intermediate Courts of Appeal.

MR GEE:   Your Honour, as a general proposition one could put no contrary submission.  But coming down to cold questions of economy of time and everything else, if we start from the position that it is a leave point, the economical way forward is for the Court to hear the question and, admittedly in an area where it would not normally venture perhaps, give the practitioners the benefit of the views of the Court.

McHUGH J:   But it is a question of costs.  You have got to go to Canberra.  You have got plane fares, accommodation costs which all add to the parties’ ‑ ‑ ‑

MR GEE:   I have put the contrary position, your Honours.

DEANE J:   The Court will take a short adjournment to consider this application.

AT 10.39 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.00 AM:

DEANE J: An appeal to this Court in this case would ultimately resolve itself into a question of the construction and effect of section 151Z(2) of the Workers Compensation Act 1987 (NSW). It would involve no question of general principle. Were it not for the matter to which we now refer, we would have concluded that the appropriate course was to refuse the application for special leave to appeal.

Mr Hughes QC, who appears for the applicant, has, primarily relied on what appears to be the undisputed fact that the point which the applicant would be concerned to agitate in an appeal to this Court was raised before the Court of Appeal but not dealt with in any judgment in that Court.  That point was raised by paragraph 7 of the present applicant’s outline of argument in the Court of Appeal which reads:

His Honour’s error consisted in his assumption that paragraph (c) applied so as to require a reduction in the amount of a Plaintiff’s damages in a case where, because of the operation of Division 3 of Part 5 of the Act, the employer is not a “tortfeasor who is, or would if sued have been, liable in respect of .....” the damage for which Trivan is liable to the Plaintiff:  see Law Reform (Miscellaneous Provisions) Act, paragraph 5(1)(c).

The respondent does not dispute that that point is not dealt with in any judgment in the Court of Appeal.  The applicant rephrases the point in paragraph 1.1 of his written submissions which reads:

Whether, on the true construction of paragraphs 151Z(2)(c) and (d) of the Workers Compensation Act, 1987 (“the Act”) there should be any deduction from the damages for personal injury otherwise recoverable by a Plaintiff from a Defendant not being his employer where the Plaintiff’s employer, if sued by the Plaintiff in respect of the same injury:

(a) would not have been liable, by reason of the operation of sections 151G and 151H of the Act to pay any damages to the Plaintiff; and

(b) was therefore not a “tortfeasor who ..... would if sued have been liable in respect of the same damage .....” within the meaning of section 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act and thus not liable to make contribution under that section with respect to the Plaintiff’s damage.

The applicant also relies on the point to support paragraph 1.2 which reads:

Whether, within the meaning of paragraph 151Z(2)(b) of the Act, the Applicant was, on the facts found by the trial judge, “entitled to take proceedings independently of this Act to recover damages from his employer”.

In all the circumstances, the Court considers that the application for special leave to appeal must succeed unless this Court is prepared at this stage to finally determine the point against the applicant.  This we are not prepared to do.  Accordingly, the Court proposes to grant special leave to appeal solely for the reason that the particular point was not dealt with by the Court of Appeal.  Subject to anything further the parties may wish to say, the Court also proposes to proceed to determine the appeal forthwith, to allow the appeal, to set aside the judgment and orders of the Court of Appeal and to remit the matter to that Court to enable it to deal with the matters raised by paragraphs 1.1 and 1.2 of the applicant’s outline of argument in this Court.

Mr Hughes and Mr Gee, since we only raised it as a possibility and it is now staring you as grim reality, we will hear anything further either of you may wish to say.

MR HUGHES:   So far as we are concerned, your Honour, not a thing.  We have nothing further to say.

MR GEE:   Shortly, if your Honours please.  The 1.2 point which has been, if I may say so with respect, neatly elided by my learned friend into the point that he puts was not dealt with below, was actually dealt with.

DEANE J:   Mr Hughes said that but, as I apprehended it, what he was saying was the failure to deal with the 1.1 point meant that his full argument on the 1.2 point had not been properly dealt with.  Is that the way you put it, Mr Hughes?

MR HUGHES:   That is so, your Honour, because the two points are interrelated.

DEANE J:   It is in that context that we have included the 1.2 point, and that will be in the transcript for what you may get from it in the Court of Appeal, Mr Gee.

MR GEE:   Your Honour, may I speak with the utmost candour.  It will be thought when the matter returns to the Court of Appeal that we have stood by here and allowed it to be thought that neither point was dealt with in the judgments below.  I, or whoever takes the matter below, will be taken to that part of his Honour Mr Justice Mahoney’s judgment at page 33 and be berated for failing to point out to this Court that indeed the entitlement point was dealt with.

DEANE J:   Mr Gee, I think you have covered that.  I will say this subject to correction:  the judgment that has been delivered should be read as not in any way suggesting that the 1.2 point was neither adverted to nor dealt with in the Court of Appeal.

MR GEE:   Apart from that submission, your Honour, and what I put earlier when the suggestion was put as a possibility, I have no further submission.

DEANE J:   Thank you, Mr Gee.  The orders of the Court are:  application for special leave to appeal granted, appeal allowed, the judgment and orders of the Court of Appeal are set aside, the matter is remitted to that Court to deal with the points raised in paragraphs 1.1 and 1.2 of the applicant’s outline of argument in this Court.  That leaves the question of costs.

MR HUGHES:   I ask your Honours for costs of the application for special leave and of the appeal.

MR GEE:   I respectfully oppose that application.  The reason for the outcome is in no way the fault of the respondent, in our respectful submission, and the just order would be that the costs of the application and the appeal be borne by each party in any event.

DEANE J:   In a context where the particular point was not raised by the applicant at first instance, the Court considers that the appropriate orders as to costs are to allow special leave to appeal with costs, to reserve to the parties liberty to apply in relation to the costs of the appeal after the outcome of the further proceedings in the Court of Appeal is known.  Mr Hughes and Mr Gee, I would think once you know the outcome, you will know what the order would be if liberty to apply were availed of.

MR HUGHES:   If the Court pleases.

MR GEE:   If the Court pleases.

AT 11.12 AM THE MATTER WAS CONCLUDED