Hamling v Australia Meat Holdings Pty Ltd

[2006] HCATrans 137

[2006] HCATrans 137

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B104 of 2005

B e t w e e n -

MARK HAMLING

Applicant

and

AUSTRALIA MEAT HOLDINGS PTY LIMITED

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 10 MARCH 2006, AT 10.02 AM

Copyright in the High Court of Australia

MR R.A. INGHAM‑MYERS:   If the Court pleases, I appear with my learned friend, MR E.J.C. HOWARD, for the applicant.  (instructed by Trilby Misso)

MR J.A. GRIFFIN, QC:   If the Court pleases, I appear on behalf the respondent.  (instructed by Abbott Tout)

GUMMOW J:   Yes, Mr Ingham-Myers.

MR INGHAM‑MYERS:   Your Honours, there are essentially two issues it is submitted by the applicant attracts a special leave point in this case.  The first is it is submitted that the Court of Appeal, with the greatest of respect, was plainly wrong in the conclusion that they reached in relation to the compliance with the legislation of the notice of claim for damages.  In that respect, it is necessary to take ‑ ‑ ‑

KIRBY J:   Is this on the TBA point?

MR INGHAM‑MYERS:   Yes, it is simply on the TBA point entirely.

KIRBY J:   If the regulation, foolish though it might be, says you have to particularise it and you say “to be advised”, what is wrong with Justice Keane’s view that you are thereby acknowledging that you have not particularised, you are going to particularise in the future?

MR INGHAM‑MYERS:   Your Honour, perhaps nothing and the stronger point from the applicant’s point of view is the waiver point and I can demonstrate that, I would submit, quite easily.  May I take your Honours to ‑ ‑ ‑

GUMMOW J:   Before you do that, can we look at the relevant legislation?  It is set out at page 40.

MR INGHAM‑MYERS:   Yes.

GUMMOW J:   In looking at it one sees this form of words “may start”, “may bring . . . only if”.  That sort of legislation is not dissimilar in its scheme from the New South Wales legislation we were looking at earlier this week.  There is no particular reason why you should be aware of it because it was New South Wales legislation, but it is, in a sense, rather limited, but nevertheless.  The two cases are Berowra Holdings and Brighton und Refern Plaster which we heard on Wednesday.  Some of the arguments in that case invited us to construe sections rather like 305 and 308 and 303 as not destructive of rights as so much imposing some postponement or barrier upon the exercise of rights.

MR INGHAM‑MYERS:   Your Honour, that is certainly an issue that does arise in this case but unfortunately it does not arise at this juncture before your Honours.  Your Honours will be aware that ‑ ‑ ‑

GUMMOW J:   Wait a minute.  There is a proceeding in the District Court, is there not?

MR INGHAM‑MYERS:   Exactly, and that challenges those very issues, your Honour.

GUMMOW J:   That is at least in the right court.

MR INGHAM‑MYERS:   Yes.  The hearing your Honours will ‑ ‑ ‑

KIRBY J:   Why should you not have to exhaust that before troubling us on this point from the Supreme Court?

CRENNAN J:   If, for example, the proceeding was not struck out in the District Court, there is no reason, is there, why it could not be uplifted or transferred, if that is the correct word, to the Supreme Court and these problems would evaporate?

MR INGHAM‑MYERS:   No, precisely, your Honour.  Exactly, your Honour.  We are awaiting a decision in the District Court and this problem may well evaporate and ‑ ‑ ‑

GUMMOW J:   The District Court may wish to have the benefit of what we say in Berowra and Brighton.  That is why we are alerting you to them.

MR INGHAM‑MYERS:   Yes.

CRENNAN J:   So the matter has been argued in the District Court?

MR INGHAM‑MYERS:   Yes.  The matter has been argued and supplementary submissions were made as recently as about two or three weeks ago and we really anticipate a decision in due course.

KIRBY J:   I realise that you are only a litigant without a lot of funds and so we have to keep our eye on that, but in the ordinary case we would postpone a matter like this until we have decided Berowra and Brighton and that would then allow you to use those decisions, whatever they may say, in the argument in the District Court and thereby, as it were, to have the District Court decision made and then maybe look both at the Supreme Court and the District Court decisions with the benefit of what we have said in those two recent cases, because they seem to be very similar.  That seems an economical use of our time.

MR INGHAM‑MYERS:   Yes.  Your Honour, if I might accept that immediately ‑ ‑ ‑

GUMMOW J:   And it seems to avoid shutting a gate that may not have to be shut, so far as your client is concerned.

MR INGHAM‑MYERS:   Yes.  Your Honours, the other consideration, of course, is that if the District Court proceedings are struck out by the District Court judge, the present applicant would probably seek leave to appeal to the Court of Appeal.  I should say that the issues before the District Court judge are much wider because they address sections 303 and 305 and 308 – perhaps very similar sections to the sections that your Honour Justice Gummow speaks about.

GUMMOW J:   Yes, that is what is worrying us.

MR INGHAM‑MYERS:   Yes, the duplication of effort.

GUMMOW J:   Yes, and the prospect that your client has a gate permanently shut simply because it went to the Supreme Court rather than the District Court, whereas there is some prospect of getting it dealt with in the District Court or transferred to the Supreme Court.

MR INGHAM‑MYERS:   Yes.  Your Honours, certainly we do not want to see the applicant shut out.  That is why – certainly this appeal has come on very quickly, as your Honours will see, and one would have ‑ ‑ ‑

KIRBY J:   It is not a case that drips with merit.  I mean, what has happened may have legal merit but it seems a very hard application of the Rules.

MR INGHAM‑MYERS:   Yes.  I am certainly in your Honours’ hands.  I would be confident of making a submission that would convince your Honours that perhaps the proceedings in the Supreme Court of Queensland were justiciable because to the extent that there was one outstanding issue, that is the Health Insurance Commission notice ‑ ‑ ‑

GUMMOW J:   This is the TBA point?

MR INGHAM‑MYERS:   ‑ ‑ ‑ yes – that compliance had been waived and, in fact – I do not want to labour the point, but if you go to page 35 of the record, the third line, which is Justice Jerrard’s judgment, he acknowledges that:

The respondent specifically said in its correspondence that the notice was non‑complying, and made it clear that the asserted non‑compliance included failure to provide the HIC charge figures, and the claimant did not give the requested undertaking before the expiry of the period of limitation.

We can demonstrate that in fact his Honour was in error in saying that, that the undertaking was given and it follows, of course, from what Justice Jerrard says there, that the undertaking having been given, the notice was compliant and therefore when the proceedings were commenced in the Supreme Court within the period of 60 days after the conference they were justiciable and really the Supreme Court proceedings, we would submit, are ‑ ‑ ‑

GUMMOW J:   Does that overcome the point that it should not have been in the Supreme Court, that you had no leave directed to the Supreme Court?

MR INGHAM‑MYERS:   No, we did not need leave, your Honour.  That is conceded, providing we commenced proceedings within 60 days of the compulsory conference, which we did.  The compulsory conference was 27 September 2004.  That required the commencement of any proceedings, without any leave, by 26 December 2004.  The Supreme Court proceedings were properly commenced on the 24th, two days before the expiration of the 60‑days limit, and so the other point disappears completely then.

Your Honours will see it has only ever been a subsidiary point.  It was an amended notice of appeal to the Court of Appeal and it is our second and certainly not our primary point here.  Our primary contention is that the notice was compliant but only compliant because of the waiver which the self‑insurer, AMH, was entitled to do, and as recognised by Justice Jerrard.  Justice Keane does not deal with the issue at all.  Your Honours will have seen the passage at page 45.  His Honour simply acknowledges at line 50 of the Court of Appeal record, that the HIC was not given and, of course, it was not and I do not pretend ‑ ‑ ‑

GUMMOW J:   I am sorry, at what page?

MR INGHAM‑MYERS:   Your Honour, page 45 of the application book.

GUMMOW J:   Line 50?

MR INGHAM‑MYERS:   If you go to line 40 of the handwritten mark for the High Court, you will come across that final passage, “That is because”.

GUMMOW J:   Yes.

MR INGHAM‑MYERS:   So his Honour quite properly says it was never provided, and it was not.

GUMMOW J:   At the moment we would be inclined to stand this application over for restoration to the list on a date after the decisions in Berowra and Brighton, but I think we should probably hear as to what Mr Griffin says as to that proposed course.

MR INGHAM‑MYERS:   As your Honour pleases.

MR GRIFFIN:   Your Honours, Berowra could really only apply to the District Court proceeding and the prospect ‑ ‑ ‑

GUMMOW J:   That is right, maybe.

MR GRIFFIN:   ‑ ‑ ‑ of it being uplifted to the Supreme Court because the claim is outside the jurisdiction of the District Court.  This present case was properly dismissed on the basis that there had been a failure to comply with section 74 of the Workers Compensation Regulation.

GUMMOW J:   Where do we see that text in the book?

MR GRIFFIN:   The text is at page 45, your Honour, of the application book.

GUMMOW J:   Yes, thank you.

KIRBY J:   Is your point that full particulars are not discharged by “TBA”?

MR GRIFFIN:   That is right, your Honour.

KIRBY J:   It does not seem a very fair point, however.

MR GRIFFIN:   Your Honour, it was not confined to that matter because there were two other areas of special damages as well which were discharged in the notice of claim or described in the notice of claim by estimates, for instance, pharmaceuticals ‑ ‑ ‑

KIRBY J:   I realise that, but these are objective things.  These are bills.  It is not really a difficult thing to get them eventually and there will not be any dispute about them.  They will just be bills.

MR GRIFFIN:   Yes, but, your Honour, they are matters that are within the knowledge of the plaintiff and they are matters that the insurer has to know about if the insurer is to make an early offer of settlement, and that is the whole purpose of this ‑ ‑ ‑

KIRBY J:   You are putting a person out of court altogether from the claim of legal rights.

MR GRIFFIN:   With respect, you are not, your Honour, because under section 305 it is open to the applicant to obtain leave of the Court to start the proceeding.  That can be done.  Now, in this case that was not done because the leave of the District Court was obtained and the proceeding that was instituted was a District Court proceeding and then subsequently, when this Supreme Court proceeding was instituted, it was not supported by any grant of leave from the Supreme Court.

GUMMOW J:   Yes, but is it not possible that if the District Court proceeding is sorted out in a way that is possible by a path that favours your opponent, this present application and the need for us to get involved in it would disappear?

MR GRIFFIN:   But only in relation to that proceeding which is a different proceeding from this proceeding.

GUMMOW J:   We realise that.

MR GRIFFIN:   This proceeding relates to the same accident but it is a ‑ ‑ ‑

GUMMOW J:   We are not attracted to deciding an appeal where there may be a route around it which has not yet been pursued.

MR GRIFFIN:   Yes.  All I can say, your Honour, as I have said, those arguments would be applicable if the matter that has been instituted in the District Court was determined and then there were an appeal from that.  The argument is not relevant to the present case because it has been dismissed on different bases, the two bases being (a) it was not supported by a grant of leave of the appropriate court, and (b) the notice of claim was never compliant.

KIRBY J:   I assume there is an inter‑jurisdictional power in Queensland, if you have a matter lawfully commenced in the District Court, to have the matter removed into the Supreme Court.  If it is lawful in the District Court, you can have the matter removed.  Is that true or not?

MR GRIFFIN:   There is such a provision, yes, but that applies to the other proceeding and my point is this case involves entirely separate issues.

KIRBY J:   I think we understand your point. The question is when it is economical and timely for this Court to become involved, if at all, and if in fact the matter can be sorted out in the District Court, possibly in the light of the decision in the Berowra Case, then it may be that that will solve all the problems and it goes away.  We sit here and we turn away people, some of whom have arguable cases, and therefore we have to be prudent in the disposition of those cases which come before us.

MR GRIFFIN:   Yes.  Your Honour, adjourning the present case in the manner suggested will not assist the applicant in the end because the claim must fail on the bases identified by the Court of Appeal.  They are bases that have nothing to do with the Berowra Case.  Our friend’s argument really hangs entirely, in the end, in this case, on the interpretation of a letter, a letter of 10 December 2003, which he says constituted a waiver of earlier objections.

Now, that is fundamentally the point that he makes.  The case is not even about statutory interpretation.  What he says is that although he agrees that he did not give full particulars under section 74, the notice of claim must be taken to be compliant because the respondent’s final letter of 10 December 2003 limited the objections to three matters, none of which, he says, he has failed to comply with.  That is really what the case gets down to.  In our submission, the decision of the Court of Appeal ‑ ‑ ‑

GUMMOW J:   This is something in the nature of a waiter argument, is it not?

MR GRIFFIN:   In the end, it is a waiver argument that he must meet and, in our submission ‑ ‑ ‑

GUMMOW J:   Would you be saying that the statutory regime is such that there is no room for waiver?

MR GRIFFIN:   There is room for waiver but there is no room for the argument that this letter constituted a waiver.  In any event, it is really just a matter of the interpretation of a letter which is not a matter that is appropriate for a grant of special leave, in our submission.

KIRBY J:   Waiver was a matter that was argued in the cases that we have just heard in Berowra, both what constitutes waiver in the circumstances and according to that test whether there was waiver in fact.

MR GRIFFIN:   Yes.

KIRBY J:   So that issue is before us.

MR GRIFFIN:   Yes, very well.  I do not have anything further to add, if the Court pleases.

GUMMOW J:   Thank you.  Mr Ingham‑Myers, what do you say to our present inclination to stand this application over to a date after the delivery of judgement in Berowra and Brighton and the reservation of costs of today, of course?

MR INGHAM‑MYERS:   Yes, the applicant certainly seeks that, your Honours.

GUMMOW J:   Very well.  This application is stood over for restoration to the list on a date after delivery of judgment presently reserved by this Court in the appeals of Berowra Holdings and Brighton und Refern Plaster which were heard by us on 8 March 2006.  Costs of today will be reserved.

AT 10.21 AM THE MATTER WAS ADJOURNED