Hollins v Commercial Minerals Limited & Ors; Hollins v Auqal Pty Limited

[1994] HCATrans 287

~

~ -.~,

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S8 of 1994

B e t w e e n -

DENIS PAUL HOLLINS

Applicant

and

COMMERCIAL MINERALS LIMITED

First Respondent

LANDORA SECURITIES PTY LIMITED

(originally, NON-METALLICS

LIMITED)

Second Respondent

AUOAL PTY LIMITED (originally

QUALITY EARTHS PTY LIMITED)

Third Respondent

Office of the Registry

Sydney No SlS of 1994

B e t w e e n -

DENIS PAUL HOLLINS

Applicant

and

AUOAL PTY LIMITED (originally

Hollins 1 22/4/94

QUALITY EARTHS PTY LIMITED)

First Respondent

COMMERCIAL MINERALS LIMITED

Second Respondent

LANDORA SECURITIES PTY LIMITED

(originally NON-METALLICS

LIMITED)

Third Respondent

Applications for special leave
to appeal

MASON CJ DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 22 APRIL 1994, AT 11.16 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, OC:  If the Court pleases, I appear with my

learned friend, MR G.M. WATSON, for the

applicant in each matter.	(instructed by Turner
Freeman)

MR B.M. TOOMEY, OC:  May it please Your Honours, I appear

with my learned friend, MR G.F. LITTLE, for the

first and second respondents. (instructed by

A.O. Ellison & Co)

MR J.D. HISLOP, OC: If Your Honour pleases, I appear with

my learned friend, MR G.J. PARKER, for the

remaining respondent. (instructed by

P.V. McCulloch & Buggy)

MASON CJ: Mr Jackson.

MR JACKSON:  Your Honours, may I go immediately to the first

issue raised in the written submissions, the issue

which has been discussed in part in the cases just

mentioned. The issue, if I could just say one

preliminary thing about it, is of great

significance, in our submission, because of the

matters that are referred to in Mr Gardiman's

affidavit at page 69 and page 70, and may I refer
at page 69 to paragraph (e), and at page 70

paragraph (g).

Could I come then to the terms of the Act and

to the three decisions of the Court of Appeal that

for present purposes are relevant. The decisions

relate to - and I should say this is the third
relevantly of those - Schedule 5 clause 4 of the

Limitation Act. May I take Your Honours to a

number of provisions of it to seek to develop the

argument which we would submit is the appropriate

result.

Hollins 22/4/94

Your Honours will see that clause 4(1)

indicates the cases to which section 60G of the Act

is to apply - I interpolate: by the operation of

the schedule, Your Honours - and that is causes of

action founded on the usual things being causes:

of action that accrued or would have accrued

before 1 September 1990 -

It is unlimited in terms of the type of action.	It
simply depends on the cause of action and the time
when it accrued.

Could I go then to clause (4) and Your Honours

will see that clause (4) says, relevantly, that:

The court may make an order under

section 60G or 60H, in relation to a cause of

action referred to in this clause -

which takes us back to clause 4(1), "within'', and

then two periods are referred to. The first is:

the period of 3 years referred to in

section 60I -

Your Honours, the alternative then is:

the period of 3 years commencing on

1 September 1990.

Your Honours will see that unlike clause (4)(a),

there is no reference in clause (4)(b) to
section 60I.

Could I take Your Honours then to the terms of section 60G at page 37 of the pamphlet copies.

Your Honours have those. Your Honours will see

that in subsection (1) it refers to causes of

action accruing in the period subsequent to that

referred to in the schedule. That is the period on

or after 1 September 1990, and in its own terms it

says that in (2) that:

If an application for an order under this

section is made to a court -

then the only test is, in effect, whether it is

just and equitable to extend the time.

Your Honours, that, if one looks at that section

alone, is the only test, there is no other one, and

what we would submit is, if I could just pause at

that point, that there is, in effect, a 3-year

moratorium in respect of causes of action accrued

before 1 September 1990; an order extending time is

not made as a right but only if it is just and

equitable that that occur.

Hollins 3 22/4/94

Where the complication comes from is from two

provisions of the same subdivision; the first being

section 60F, the second being section 60I. If one

goes to section 60F it sets out - if I could use

the expression for I think the second time this

morning - in a declamatory fashion, in the first

sentence of it what is the purpose of the

subdivision and it is, in our submission, really

speaking, prospectively in respect to the

provisions that it is bringing in for the future.

Then it says also:

This procedure is available for causes of

action accruing on or after 1 September 1990,

and also (by the operation of Schedule 5) -

and they are the words, in our submission, that are

critical, the causes of action that accrued before

that date.

When one goes then to section 60I,

Your Honours will see that it provides a limitation

upon the ability to make an order under section 60G

and whilst we would not seek to pretend that the

resolution of the provisions is absolutely clear,

what we would submit is this; that when it is

speaking of section 60G or section 60H, as the case

may be, what it is referring to is those provisions

in respect of their operation for causes of action

accruing on or after 1 September 1990 as distinct

from the limited and restricted application given

by the operation of clause 4(4)(b) of the Schedule.

That is the argument, and that issue was

decided in favour of plaintiffs in the first of the

three cases.	May I take Your Honour to that for
just a moment:	James Hardie & Co P/L v Wootton

(1990) 20 NSWLR 713, and the principal judgment is

that of Chief Justice Gleeson at page 717. It is a

passage which commences in the first new paragraph

on the page and goes through to the top of the next

page. There is not, I think, Your Honours, any

particular reference to the term, "latent injury",
or anything of that kind in it but I will come to

that in just a moment.

It is clear, Your Honours, the court in that

case was a kind of free-standing provision not

limited by section 60I.

DAWSON J: But they were not .. required in that case to have

regard to whether section 60F applied in any

particular respect, were they?

MR JACKSON: Well, Your Honour, clear enough that the court

was looking at the whole of the subdivision - - -

Hollins 4 22/4/94

DAWSON J: Yes, but not in the sense in Plumb that became a

question.

MR JACKSON:  Your Honour, that is true, however, there is

nothing really, one way or the other, in a sense,

in the first of the cases. Could I just take

Your Honours to what was said by the Court on the

application for special leave; members of the Court

being Justice Brennan, Justice Deane and

Your Honour Justice Toohey. I will just take

Your Honours to the conclusion of it on the last

page. What was said by Justice Brennan on behalf

of the Court was:

On any approach there is an element of

anomaly in the enactment of clause 4(4)(b) -

and then went on to say the Court was not persuaded

there was sufficient doubt attending the conclusion

that a case covered by 4(4)(b) was not governed by

60I.

So, Your Honours, recognizing the limitations

upon decisions of that kind, may I just say two

things about it. The first is that the Court there

recognized that the issue was one of some
difficulty but was not of the view that the
decision of the court below was wrong, rather the

opposite.

That is the first case. The second, of course

is, Electricity Commn of NSW v Plumb, (1992)

27 NSWLR 364. In that case the Court of Appeal,

differently constituted, held that the decision in

James Hardie & Co Pty Ltd applied only to latent

injuries. That appears, if I could select a

passage that puts it fairly shortly, at page 371D

to Fin the reasons for judgment of

Mr Justice Handley, and what was said effectively was that clause 4(4)(b) applied only to cases of latent injury. Whether that be, in the abstract,

correct or not, may be a matter of debate but that

case, of course, also came to the Court on an

application for special leave and can I give

Your Honours copies of that. I see, Your Honours,

with the agility of Mr Toomey, I was on the other
side of that in that case, but Your Honours will
see at the bottom of page 11 that what was said was

the interpretation on, amongst other things,

Schedule 5 was not:

sufficiently arguable to justify the grant of
special leave -

If the matter had rested there, there would have been an intelligible enough division, in

effect, in the resolution of the two cases but when

Hollins 22/4/94

one comes to the present case it is clear that it

was treated at first instance as being a, "latent

injury" case. Could I take Your Honours to page 6,

lines 4 to 11, where the primary judge said:

The court there held -

and he is speaking of Wootton's case:

that the legislature significantly altered the

provisions in relation to discretionary -

et cetera:

In doing so, at least in relation to matters

of this kind, it provided that during a period

of three years commencing 1 September 1990,

any case of latent injury -

et cetera. Your Honours, we are speaking of

matters of this kind in one line, latent injury on

the next. One would think the two are being spoken

of as being synonymous.

Your Honours, in the Court of Appeal in this

case, the decision in Plumb was simply, in a sense,

treated as being applicable. May I take

Your Honours in that regard to page 42 at line 20 and reading on to about line 23:

The decision of this Court in Electricity

Commission v Plumb .... . establishes that in the

case of a pre-1990 injury such as this, a
party seeking an extension of a limitation

period must establish ..... the relevant time

being "at the expiration of the relevant

limitation period -

Your Honours will see in the second line on page 43

a reference to section 60I.

So that it is clear, in our submission, that

the result of the decision in the present case is
that such distinction as there might have been

between Wootton and Plumb has really gone and the

resolution of this question in the past might not

have had the importance which it now has but what
has happened has been - with the merger of the two
concepts in the present case, it has become an

issue, we would submit, of considerable importance. Your Honours, as Mr Gardiman's affidavit point out,

the claims of hundreds of people, many of whom are

slowly dying, depends on it.

Your Honours, could I come then to the second

issue which I can deal with relatively shortly. It

arises, if one assumes that we fail on the first

Hollins 6 22/4/94

point and that it is necessary to show that section

60F is satisfied - 60F or perhaps the equivalent

provisions in section 60I because it is not

100 per cent clear which is the approach being

taken by the Court of Appeal.

Your Honours, what is required by those provisions - and I can take Your Honours to them

for just one moment, and first to section 60F
setting out the concept it is said underlying the

provision. It is said to provide a procedure:

where the plaintiff was unaware of the fact,

nature, extent or cause of the injury, disease

or impairment -

If Your Honours go to section 60I(l)(a)(ii):

was unaware of the nature or extent of

personal injury suffered -

What is contemplated by the provisions is a

question of awareness, not a question of

constructive knowledge or a question of imputed

knowledge. But the test adopted by the Court of

Appeal appears at page 47, lines 1 to 10.

Your Honours will see particularly the third line

on that page:

The further deterioration -

to put it shortly -

was reasonably foreseeable and the worker was

aware of this risk or chance. As a general

rule it seems to me that variations in the

later progress of a disease within limits that

were reasonably foreseeable at an earlier

stage cannot establish a relevant lack of

awareness -

If one goes to the preceding page, the last

paragraph on page 46, Your Honours will see the

factual background, in a sense, to that

where, commencing at line 14, His Honour says that

he concludes:

that by 1979 the worker knew that he had

silicosis, the general nature of this disease,

its extent -

et cetera. His Honour then says at line 16:

It is true that he did not know its future

course, or the effects it would later have on

his ability to retain his job and his life

Hollins 22/4/94

expectancy. However he knew that there was a

"real chance" or "a real risk" -

and:

it was not suggested that a specialist in the

field could then have predicted the future

course of his silicosis.

I would ask Your Honours to read the remainder of

that paragraph, I will not elaborate on it.

The test adopted by the Court of Appeal, in

our submission, involves the application of a test

which is not quite that which is stated by the

statute. The statute requires, we would submit

and as I submitted before, that the be a subjective

knowledge. The test that has been applied has been

a kind of constructive knowledge or knowledge of

what might happen.

Your Honours, the test adopted does seem a

little inconsistent with that court's earlier

decision on the legislation in an earlier form.

That is Ditchburn v Seltsam Ltd, (1989) 17 NSWLR

697.      The issue in the case there concerned the

definition of material facts in section 57(l)(b),

and Your Honours will see that set out on page 697

in the headnote beside letter D:

Material facts are defined ins 57(l)(b)

as including:

"(l)(iv) the nature and extent of the personal

injury -

and so on. At page 704, Mr Justice Kirby, with

whose reasons Mr Justice Hope agreed, Your Honours,

half-way between letters Band C, said:

In order to make that knowledge complete and a

"material fact" within the statute he must

know "the nature and extent" of that injury.

Because that "injury" can include a disease of

gradual onset, clearly this envisages the

possibility of early signs and symptoms which

do not constitute sufficient indication of

that "nature and extent".

Your Honours, at page 707 Mr Justice Mahoney, in

the paragraph commencing between D and E referred

to the fact that knowledge had, "a subjective

connotation". The case is not, of course, decisive

on the question but it is some indication.

The issue, as Mr Gardiman says in paragraphs

19 and 20, very frequently arises.

Hollins 22/4/94

Could I turn Your Honours to the third issue?

That is a distinct one. It is really a question of

on which side of the line the case falls. Could I

refer to page 71? It concerns the question whether

payments under The Workers' Compensation (Dust

Diseases) Act are to be taken into account.

Your Honours, the Act is discussed on that page and

the succeeding pages; essentially, paragraph 25 on
page 73, going over to the top of the next page.

The considerations to be taken into account were, of course, discussed by the court in Redding

v Lee, 151 CLR 117. I do not want to take up undue

time on it. May I simply say that if one looks at

the statute it is plainly, we would submit, more

akin to something which, whatever be the name of

it, can be described as an invalid pension rather

than to something which, for example, would be

described as say an unemployment benefit or

something in the nature of workers' compensation

statutes in the stricter sense.	Your Honours, that
is a real and important issue.

Could I move then to the fourth question, and

that is the way in which the matter was dealt with

by the Court of Appeal. Our submissions on that

are set out in the application book, and

Your Honours will see them at page 74 and

following. In the various pages that are referred

to there are pages in the Court of Appeal record.

They are contained in a supplementary book which

Your Honours will have, but the pages had not been

collated. The document which I am about to give

Your Honours simply has handwritten the relevant

pages.

May I endeavour to put simply two things

arising from that.	Your Honours, I see the time
has expired.	I wonder if I could ask Your Honours

for a minute in relation to it?

MASON CJ: Yes.

MR JACKSON: The first is this, Your Honours: at page 75 -

and I use these matters by way of example -

Your Honours will see in paragraph 29 the findings

made by the primary judge and they include this, in

paragraph 2 9 ( b) :

"At least as at 24 December 1982, the

plaintiff (appl.icant) would have been, on the

basis of that report, in some doubt as to the

cause of his disease."

Then, paragraph (c), at the top of the page:

Hollins 9 22/4/94

"I conclude that the plaintiff (applicant) had

some doubts as to the nature, the extent and

the cause of his disease, at least until

sometime after 1986."

Your Honours, those are findings made by the

primary judge. There was evidence which

Your Honours will see in the supplementary book at

the page which is numbered 118 in the bottom right
corner, and Your Honours will see the top half of
the page deals with the state of his knowledge and

then also the question and answer commencing about

line 34 to line 38. Your Honours will see at

page 119, between lines 5 and 10, that there was no

further examination about those matters.

Your Honours, comparing those findings with

what was done by the Court of Appeal, which

Your Honours will see in paragraph 30, Your Honours

will see, for example, in paragraph 30(b):

"In my opinion, the workers' knowledge ..... was

for all practical purposes complete at all

times between 2 April 1979 and 15 August

1986 -

which really, Your Honours, does not seem to be in

accord with the findings made by the primary judge.

Your Honour, I do not wish to advance any - - -

MASON CJ:  Mr Jackson, do your notices of appeal go beyond

the submissions that you have made to us?

MR JACKSON:  No, Your Honour, I do not think so. The only

aspect is that I have not addressed orally on some

of the matters in paragraph 4. They deal with the

subject-matter with which I have just been dealing.

MASON CJ: Yes, thank you. Mr Toomey.

MR TOOMEY: May it please Your Honour.

Your Honours, we would say that if Wootton is

considered carefully, it is apparent that indeed it

was treated by the Court of Appeal as being a case

of latent injury.	May I refer Your Honours to 714E
to G:

The evidence discloses that the

respondent left the employment of the
appellant in 1984. It seems that over a
period of years prior to 1984, he had an
awareness of having contracted some form of

dust disease, and at the time he left the

employment of the appellant he knew that he

had asbestosis.	However, he did not then know
that he might suffer from mesothelioma.	He

Hollins 10 22/4/94

received compensation following 1984 and it
appears between 1984 and 1987 he believed that

he was being fully compensated in respect of

the disease from which he was suffering.

However, in early 1987 he was given further

medical information and advice and came to

believe that he might contract mesothelioma.

Now, mesothelioma, of course, is a separate disease

from asbestosis. It is a cancer, and it would, in

our respectful submission, fall within the latent

disease provisions and it would fall outside the

awareness provisions. So that, for the purposes of

section 60F or section 60I, he was unaware at the

relevant time, because, of course, his asbestos

ingestion was very many years before.	So there was
clearly statute power.

At 718A, the learned Chief Justice said, or

starting at the bottom of the page:

In doing so, at least in relation to matters of the kind with which we are presently

concerned, it provided that during a period of

three years commencing on 1 September 1990, in

the case of a latent injury, the result for

which the respondent contended before Judge

O'Meally applies.

In other words, the Court of Appeal treated Wootton

as being the case of a latent injury. Again, at

715D, the learned Chief Justice said:

Section 60F identifies as a latent injury one

that has occurred in circumstances -

and he sets out the terms of section 60F. So, in

our respectful submission, it is clear that Wootton

was not decided as a case which was unfettered by
section 60F and would have had the same result

whether or not it was a latent or a patent injury.

So that the supposed tension between Wootton and

Plumb does not arise.

In respect of the question of whether

section 60F applies: well, I take the point raised

by Your Honour Justice Dawson, or I think it might

have been Your Honour the Chief Justice, that

section 60F is merely stating the purpose of the

subdivision, it is not actually saying what the

procedure will be. If you look at section 60I, in

fact the only difference between what one could

deduce as being the - - -

DAWSON J:  The point was that it attached to section 60G not

I .

Hollins 11 22/4/94

MR TOOMEY:  Indeed, Your Honour. But, Your Honour, with

respect that was our point, that you needed
section 60F to put a confine on G when you are

dealing with Schedule 5(4)(b). Otherwise you have

got no confines and, of course, that is

Mr Jackson's point, that there is no confinement to

section 60G and you can have someone coming along

with an injury which is not latent and he can be

let in under section 60G. That, we say, ignores

the fact that there is already in the Act, as I
pointed out to Your Honours in argument in the

earlier cases, a confined right of extension of

time in respect of the patent injury. That is to

be found in subdivision (1) and subdivision (2)

depending on whether it happened before or after

1 September 1990. So, in our respectful

submission, it is plain that section 60F does apply

so as to fetter the leave which can be granted

Subdivision 3.

Your Honours, whether one reads section 60F as

applying the limitation to section 60G or
section 60I, the actual result, apart from the time
limitation, and that point is cleared up by the

schedule, the only material difference would appear

to be the appearance in 60I(iii):

A court may not make an order under

section 60G or 60H unless it is satisfied

that -

the plaintiff

was unaware of the connection between the

personal injury and the defendant's act or

omission.

It is submitted that it would be a very rare case

in which the plaintiff, knowing the cause of his

injury, in the sense in which the Court of Appeal

had treated it, would not be aware of the

connection between the injury and the defendant's
act or omission.	It certainly must relate to

factual matters, not legal matters as was decided

by this Court in Do Carmo, 154 CLR where it was

held that in respect to the earlier provisions of

the Act, lack of knowledge of a cause of action was

not sufficient.

So, being, "unaware of the connection between

the personal injury and the defendant's act or

omission" must be on a factual basis and no other

basis. In this case, as is, we would respectfully

submit, clearly to be deduced both from the primary

judge's findings and those of the Court of Appeal,

the applicant had that knowledge, whether you are

Hollins 12 22/4/94

applying section 60F or 60I. At page 44,

Mr Justice Handley, at line 25, said this:

The extent of the worker's knowledge was

explored in cross-examination. He agreed that

in 1971 he knew that his silicosis was a dust

related disease which had been caused by his

exposure to dust at work. The following year

he changed his job to driver to get away from

the dust. He agreed that his father's chest

condition had deteriorated from 1971 until his death in 1978 and that he died from silicosis.

So, he must have known that it was a progressive

disease because his father's condition deteriorated

and his father died from it:

The worker agreed that in the late 70s he was

having increasing problems with his work but

was still able to do it.

He was found in 1978 to have a 40 per cent

disability from silicosis. In 1971 he had

10 per cent disability; in 1978, long outside in

the applicable limitation period, he had

40 per cent, and he was paid, of course,

compensation for it. In other words, he knew that

in his own case, between 1971 and 1978, he had

deteriorated by a further 30 per cent. How could

it be found by any judge that he did not know that

he had a progressive disease and that he might

deteriorate further? He had deteriorated by

30 per cent in 7 years. His father had been forced

to leave work and then after a further

deterioration had died from the disease and, again,

it would be our respectful submission that this is

a case where the facts are so strongly against the

applicant that had he satisfied the legal

requirements, he could never have won under the

just and reasonable requirements in section 60G(2)

because it would have been sterile.

Your Honours, as to the second issue, we

merely say that these were dealt with appropriately

and fully by Mr Justice Handley at page 47. It may
be that there are to be distinctions to be made

between lack of knowledge that a disease is a

progressive disease, and we would, with respect,

concede that that would be a relevant unawareness

because it would be an unawareness of the extent of

the disease, but a mere lack of knowledge of the

degree to which a known progressive disease may

progress is, it is submitted, outside the section.

What the applicant is saying in this case

really is, "I did not know the effect of it"; not

that he did not know the extent of it, but that he

Hollins 13 22/4/94

did not know the effect of it. He said, "I

believed I would be able to go on working" although

he knew that he had 10 per cent disability in 1971,

40 per cent in 1978; he then got up to 50 per cent
in 1982, I think; 60 per cent in 1985 and

100 per cent in 1986. In other words, there is a

pattern of deterioration and progression about

which he knew. How could he, as a matter of fact,

ever succeed on the basis that he was unaware of

the extent of the disease?

Your Honours, in respect of the third

question, I have referred to some cases in our

submissions where the point has been decided. I

have wrongly said that Adams v Ascot Iron Foundry

had been followed in them. Your Honours, it was

followed in Hood Constructions v Nicholas which is

a New South Wales case. It was not followed, it

was not mentioned in Bollen v Hickson which is a

Queensland case, although the decision in Bollen v

Hickson was consonant with Adams v Ascot Iron

Foundry. It was not mentioned in Sharp v

Associated Pulp & Paper Mills Ltd, the Victorian case, and that is a very instructive case because

in that case, Your Honours, the plaintiff in a

personal injuries case had suffered injury before

the Workcover legislation came into force.	He had
been paid worker's compensation under the

Workers' Compensation Act which preceded Workcover, and the Act provided that if he recovered damages

he had to repay that. He continued to receive

payments under Workcover which the Workcover

legislation did not require to be paid back.

In Sharp's case, the Full Bench of the

Victorian Supreme Court held that although there

was no requirement in the Workcover legislation

that the compensation thus paid should be paid

back, that it must be taken into account in

diminution of the plaintiff's future damages. It is a sort of an unjust enrichment point. I might

say that in Adam's case that the court there,

President Sugerman, Mr Justice Asprey, and I think the third member of the court might have been

Mr Justice Holmes, considered Espagne's case in

arriving at their decision. So there can be no

suggestion that it was decided per incuriam. They

took into account the relevant authorities in this
Court.

So, in Queensiand and New South Wales and in Victoria, there are authorities that where

compensation is paid which does not have to be

repaid, it is to be taken into account in

diminution of damages both past and future.

Hollins 14 22/4/94

May I just point out to Your Honours that this

result was pointed to as long ago as 1940 by

Mr Justice Evatt, as he then was, in Farmer & Co v

Griffiths, 63 CLR. That was a case where a

juvenile had received workers compensation, and it was in the days when you elected - you had a right

to workers compensation or you had a right to lump

sum damages. Workers compensation was received on

his behalf.	When he turned 21 he brought an action
for lump sum damages.	The High Court held that he

was not disentitled to bring that action by the

receipt of the compensation as an infant because it

was not a decision made solely for his benefit, but

Mr Justice Evatt in holding that said, of course,

the compensation paid must be credited against the

damages he received. Because there were the

election provisions in the Act there was, of
course, no provision for the repayment of
compensation or the crediting against damages which
is the case here because there is no such provision

in the Dust Diseases Act. But Mr Justice Evatt

said, as a matter of course and we would say

obviously as a matter of justice, if he has

received these moneys and there is no provision for

repayment and it is in respect of this injury, then

it must be credited.

Your Honours, as to the miscarriage of justice

ground, we are at a disadvantage because we

received the supplementary application book~without

reference to what particular parts were relied

upon, and we are in difficulty as to the precise

material because we have not had an opportunity to

look at it to see whether there is something

contrary or whether there is some answer to it.

Can I say in general answer that the material

reproduced by the Court of Appeal in its judgment

by Mr Justice Handley in his judgment in respect

of - - -

MASON CJ: Basically what you rely on anyhow.

MR TOOMEY:  Indeed it is, Your Honour, because His Honour

sets out the answers in cross-examination which we
say destroy any suggestion that he did not have the

appropriate knowledge. May it please Your Honours.

MASON CJ: Thank you, Mr Toomey. Yes, Mr Hislop.

MR HISLOP:  May it please the Court, I have little to add to

what Mr Toomey said in relation to Mr Jackson's

first point as to 60F. We would respectfully

concur with the submission that James Hardie v

Wootton quite clearly at the references pointed to

by Mr Toomey, makes it' clear that the court was

there concerned with the latent injury,

acknowledged that 60G applied only to that and that

Hollins 15 22/4/94

the appropriate description of "latent injury" was

that described in section 60F. Once that was

accepted there was no dispute in Wootton's case

that it was a case of latent injury; that was not

an issue. Plumb's case is consistent with that.

So too is the present case. So we would submit

there is no tension on the authorities at all,

particularly when the matter came before this Court

in Plumb, the Court did not consider there was a

sufficiently arguable case to justify the grant of

special leave.

The only other matter we would wish to put in

relation to the first point is the fact that the

clause which is relied upon is a sunset clause. It

has now ceased to apply in respect of injuries

prior to 1 September 1990. Mr Gardiman's affidavit

says that there are 576 matters which have been

issued in the Dust Diseases Tribunal in relation to

that. That tribunal has exclusive jurisdiction in

such matters, so therefore the amount of cases

where there would be any dispute as to whether the

injury is latent within the description in

section 60F would, in fact, be few.

As regards the second point put by Mr Jackson,

he referred the Court to the case of Ditchburn v

Seltsam Ltd, (1989) 17 NSWLR 697. He took the

Court to page 704 where the Court had said in relation to knowledge of injury and the nature and

extent of injury:

Because that "injury" can include a disease of

gradual onset, clearly this envisages the

possibility of early signs and symptoms which

do not constitute sufficient indication of

that "nature and extent".

If one then goes back one page to 703, one sees what is meant by the court when it talks of early

signs and symptoms. At 703F the court gives

examples:  A headache might have a hundred

explanations. So might chest pains. The

present case is a good example. At first the

claimant's chest pains were attributed to a

back injury. Even in May 1987, when it may be

inferred that Dr Mann first raised the

question of asbestos, the "nature and extent"

of that claimant's "personal injury" had not

been determined. A relation to asbestos was

only one of a number of hypotheses -

and so on. That simply has no application in this

case, whereas at 1971 the man knew he had silicosis

and was 10 per cent incapacitated thereby, and by

Hollins 16 22/4/94

1978 that incapacity was 40 per cent. This simply

is not a case of early signs and symptoms. It is

far beyond that.

The third point that Mr Jackson put was in

relation to the question of the payments of

compensation under the dust diseases legislation,

under the Workers Compensation (Dust Diseases) Act,

and he submitted that that was really in the nature

of an invalid pension or something of that nature.

That is simply, in our respectful submission, not

correct. Under section 8(1) of that Act there must

be initially a finding of total or partial

disability for work. That is under

section 8(1)(a). So one firstly has that

requirement, and if that requirement and certain

other requirements there set out are met, the
injured person becomes entitled to an award from
the board and to receive compensation at the

prescribed rates from the fund.

One then goes to section 8(2) of the Act and

that sets out -

the prescribed rates of compensation payable

under an award of the board made pursuant to

subsection (1) ..... shall, subject to this

section, be:

(a) where the award is made pursuant to

paragraph (a) of that subsection - the weekly

compensation payments prescribed by Division 2

of Part 3 of, and Schedule 6 to, the Principal

Act in respect of workers -

and so on. So what the Act is, in fact, doing is

requiring that there be a disability for work and

then saying that shall be compensated in accordance

with the Workers Compensation Act itself, which is

referred to as the principal Act in this

legislation, and that brings into play then the

requirements under that Act that if the worker is

wholly incapacitated for work he gets the full
amount, but if his incapacity is partial, then his

earnings and loss of earnings has to be considered.

Thus it was in this case, that where the worker had

a 10 per cent incapacity for work in 1971, a

40 per cent incapacity in 1978, 50 per cent

somewhat later, he did not receive any compensation

at all under this Act until 1986 when he ceased

work. So it is quite incorrect to align it with an

invalid pension or a thing of that nature. It is

properly aligned with workers compensation.

That was what the Full New South Wales Supreme

Court held in Adams v Ascot Foundry.	It was a
strong Court of Appeal.	They reserved the

Hollins 17 22/4/94

decision; it was fully considered; they applied

Espagne's case which remains the appropriate

authority to apply. In our submission, this Court

would not intervene with a finding made by that

court where it has been of such long standing as
26 years, and where it has been followed as pointed

out in the judgment from which this application is

brought and by Mr Toomey, it has been applied in

other cases. In our submission, the Court would

not do so in circumstances where there was a

concession made in the Court of Appeal as to past

payments that they were properly set off, which is

really a concession as to the appropriate

classification, and particularly where the comments

of the Court of Appeal below did not form part of

the ratio decidendi of the case and was merely by

way of dicta.

As regards the fourth point put by Mr Jackson,

that has already been addressed largely by

Mr Toomey, and I have little more to say except to

point out that the excerpts which are contained in

the supplementary material put forward by the

applicant are a selected set of excerpts. They are

not complete and, of course, they have a bias in

one particular direction.

The Court of Appeal had powers under

section 75A of the Supreme Court Act in dealing

with this matter, and in so doing they were

entitled to make any findings which ought to have

been made or given, or which the nature of the case

requi~ed. They had power to draw inferences and

make findings of fact. In our submission, what the

Court of Appeal did they were entitled to do and

was justified by the facts in this matter, not the

selected few that Mr Jackson puts forward in his

supplementary materials, but having regard to the

whole of the facts and materials that were before

them. May it please the Court.

MASON CJ: Thank you, Mr Hislop. Yes, Mr Jackson.
MR JACKSON:	Your Honours, may I deal with four matters.

The first concerns an observation of my learned

friend, Mr Toomey - and perhaps I have

misapprehended in some way. But my understanding

of what he said was that in relation to Wootton's

case, it was a case where both section 60I and the

requirements of section 60G(2) could have been

satisfied. That appears not to have been the case,

in fact, because as Your Honours will have seen in

Wootton's case at page 717B it was said

specifically that he could not have satisfied the

requirements of section 60I.

Hollins 18 22/4/94

The second thing, Your Honours, is this,

referring again to my learned friend, Mr Toomey:

such fetter as there might be imposed by

section 60F in terms of Wootton's case could only
be in relation to the fact that there is some

requirement for the injury to be a latent injury.

The vice of the decision in the present case is

that it brings Plumb into the latent cases.

Your Honours, that takes me then in a sense to

what is the second point. The reference to latent

injuries seems really, if one analyzes the

provisions, to derive only from the heading, the

heading to the subdivision which says

"Discretionary extension for latent injury"

et cetera. The terms of section 60F say nothing

about a latent injury.

DAWSON J: 

To place emphasis on the "et cetera".

MR JACKSON: 

Your Honour, I was going to say if one founds on the rock of the latent injury, one founders on

the whirlpool of the et cetera - in or on, I am not

sure which one.  One cannot have the latent injury

without an et cetera. That is the short simple

thing.  So a lot has been built on the latent

injury without the et cetera.

The third thing is this: if one goes to the

application book at page 6 and looks to see what
were the findings made by the primary judge and the

propriety of the Court of Appeal's interfering with

those, Your Honours will see at page 6 lines- 11 to

15, His Honour said:

I conclude that the plaintiff had some doubts

as to the nature, the extent and the cause of

his disease, at least until some time after

1986.

That is amply borne out by the passage to which I

referred Your Honours earlier at page 118 in the

supplementary book.

Our learned friend, Mr Toomey, spoke of a

difference between "effect" and "extent", but that

is a distinction in a case such as this based

really on words, not on substance.

Finally, as to the fourth ground, could I say

in relation to the supplementary application book,
all it does relevantly is to give the Court the
pages which were already referred to in the

material in support of the application from the

earliest moment. Of course, they are selected.

They are selected because they are the ones that are relevant.

Hollins	19	22/4/94
MASON CJ:	Thank you, Mr Jackson.	The Court will take a

short adjournment to consider the course it will

take in these matters.

AT 12.09 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.15 PM:

MASON CJ: 

The Court has decided that it will grant special

leave to appeal in Dedousis v The Water Board. It
will stand over the other applications in the
matters of Hall v Brambles Australia Limited,

Butfield v John Lysaght (Australia) Limited and
Hollins v Commercial Minerals Ltd & Ors to await

the determination in Dedousis.  To that end, those

matters can be stood over to a date to be fixed.

AT 12.17 PM THE MATTER WAS ADJOURNED

TO A DATE TO BE FIXED

Hollins 20 22/4/94