Ivanka Pravidur v Scental Pacific Pty Ltd
[2010] VSCA 144
•22 June 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2008 3914
| IVANKA PRAVIDUR | Appellant |
| v | |
| SCENTAL PACIFIC PTY LTD | Respondent |
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| JUDGES | NEAVE and REDLICH JJA and HABERSBERGER AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 18 March 2010 |
| DATE OF JUDGMENT | 22 June 2010 |
| MEDIUM NEUTRAL CITATION | [2010] VSCA 144 |
| RULING APPEALED FROM | Pravidur v Scental Pacific Pty Ltd and Victorian WorkCover Authority (Unreported, County Court of Victoria, Judge Morrow, 21 November 2008) |
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ACCIDENT COMPENSATION – Jury trial – Common law damages for serious injury – Whether Victorian WorkCover Authority had complied with disclosure obligations under Accident Compensation Act1985 – Whether prohibition resulting from s 134AB(8) and 11 applied to common law proceedings brought with leave of the court or the Authority’s consent – Evidence of eye witness to accident – Whether viva voce evidence made inadmissible under s 134AB(11) – Whether evidence of witness fell within phrase ‘other material’ in s 134AB(8), (11) – Relevance of Ministerial Direction to question of construction – Whether trial judge had residual discretion to admit or exclude evidence – Accident Compensation Act1985 ss 20C, 134AB(4), (5), (7)–(12), (16), (37), 134AF, 135A(2D), (2DA) – Ministerial Directions 3, 7.1, 7.4 considered.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr T P Tobin SC with Mr M Schulze | MW Law |
| For the Respondent | Mr J Ruskin QC with Ms M Britbart | Minter Ellison |
NEAVE JA:
I have had the advantage of reading the draft joint judgment of Redlich JA and Habersberger AJA. The issues raised in this appeal are clearly set out in their reasons, and I do not repeat them. I regret that I take a different view as to the combined effect of sub-ss 134AB(7), (8) and (11) of Accident Compensation Act 1985 (the ‘Act’). For the reasons set out below I would allow the appeal and remit the matter for re-trial.
I turn first to the disclosure provisions contained in s 134AB(7) and (8) of the Act and the interaction of these provisions with s 134AB(11) (the ‘inadmissibility provision’). Whilst the relevant principles of statutory interpretation are not in contention, I take a different view from their Honours as to the manner in which those principles apply in the circumstances of this case.
Until December 1992 a worker who suffered a work-related injury was entitled to recover common law damages for non-pecuniary loss, up to a statutory ceiling. The Accident Compensation (WorkCover) Act 1992 (the ‘1992 Act’) was intended to make ‘fundamental changes to the scheme of workers compensation operating in Victoria featuring … better targeting of compensation benefits’.[1] It did so by introducing a new s 135A, which provided that workers injured on or after 1 December 1992 could recover damages only if they suffered a serious injury.[2] Sub-sections (3) and (4) set out three means by which a worker could establish that he or she had suffered a serious injury.
[1]Accident Compensation (WorkCover) Act 1992, s 1.
[2]The section inserted section 135A(1) (as it then stood) into the Act. Note the qualification in s 135A(2).
Sub-sections (3) and (4) of the 1992 Act provided as follows:
(3)If the Authority or self-insurer determines that the degree of impairment of the worker as a result of the injury would, if assessed in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Second Edition or any subsequent prescribed edition) be 30 per centum or more, the injury is deemed to be a serious injury within the meaning of this section
(4)If the Authority or self-insurer has determined in accordance with sub-section (3) that the degree of impairment of a worker is less than 30 per centum, the person may not bring proceedings for the recovery of damages in respect of the injury unless –
(a)the Authority or self-insurer –
(i)is satisfied that the injury is a serious injury; and
(ii)issues to the worker a certificate in writing consenting to the bringing of the proceedings; or
(b)a court, on the application of the worker, gives leave to bring the proceedings.
As I explain below, these requirements were broadly similar to the requirements which a worker injured on or after 20 October 1999 must now satisfy, in order to commence common law proceedings to recover damages for serious injury.
In 1996 new sub-ss (2A) to (2D), were inserted into s 135A.[3] These provisions set out time-lines for the Authority to make a determination as to whether the worker’s degree of impairment was 30 per cent or more. Sub-section (2D) provided:
[3]Accident Compensation (Amendment) Act 1996, s 32.
If the Authority, authorised insurer or self-insurer has not within 60 days of receiving the application advised the worker in writing—
(a)of the determination; or
(b)of the refusal to make a determination under sub-section (2C)—
the worker is entitled to bring proceedings in accordance with this section and to have the question of whether or not the injury in respect of which the worker is seeking to receive damages is a serious injury determined in the proceedings.
In 1997 the Kennett Government amended the Act to abolish the rights of seriously injured workers to recover common law damages, for any injury arising out of or in the course of employment on or after 12 November 1997.[4] Section 135 of the Act was amended to provide that only workers who suffered injuries arising out of or in the course of employment before 12 November 1997 or who suffered an incapacity arising from an injury occurring before that date could recover common law damages.[5] In addition new sub-sections were inserted in s 135A (the provision permitting such workers to commence common law proceedings) which imposed disclosure obligations on the Authority and the worker and establishing a conferencing and statutory offer process to assist in the resolution of disputes.
[4]Accident Compensation (Miscellaneous Amendment Act) 1997, s 45, inserting s 134A(1).
[5]Accident Compensation (Miscellaneous Amendment Act) 1997, s 46(3), amending s 135
Sub-section (2D) as it then stood was amended[6] to read:
The Authority, authorised insurer or self-insurer must, within 120 days of receiving the application, advise the worker in writing—
(a)of the determination; or
(b)of the refusal to make a determination under sub-section (2C).[7]
[6]By s 47(4) of the Accident Compensation (Miscellaneous Amendment) Act 1997. The provisions were later amended to remove the reference to authorised insurers: Accident Compensation (Amendment) Act 1998, s 25(9)
[7]Sub-section (2C) permitted refusal to make a determination if the application was received in the first 104 weeks after the injury and the Authority or other relevant body was not satisfied that the worker’s injury had stabilised.
New provisions were also inserted after sub-s(2D). Among the new provisions was sub-s (2DA),[8] which imposed new disclosure requirements on the Authority. It provided:
[8]Inserted by s 47(5) of the Accident Compensation (Miscellaneous Amendment) Act 1997.
The advice referred to in sub-section (2D) must be accompanied by—
(a)a copy of all medical reports; and
(b)affidavits attesting to such other material—
existing when the advice is given and of which the employer, Authority, authorised insurer or self-insurer or the legal representative of any of them is aware and on which they intend to rely or the substance of which they intend to adduce in evidence in proceedings brought by the worker in accordance with this section or in any related proceedings. (emphasis added)
The consequences of failing to comply with the disclosure requirements were set out in sub-s (2DD):
In proceedings in accordance with this section, a medical report or other material is inadmissible in evidence—
(a)on behalf of the Authority, authorised insurer or self-insurer if—
(i)it was in existence, and the employer, Authority, authorised insurer or self-insurer, or the legal representative or any of them, was aware of it, before the date by which the advice of the Authority, authorised insurer or self-insurer is required to be given under sub-sections (2D) and (2DA); and
(ii)it had not been disclosed to the worker in accordance with sub-sections (2D) and (2DA); or
(b)on behalf of the worker if—
(i)it was in existence, and the worker or the worker's legal representative was aware of it, before the expiration of 28 days after receiving the advice under sub-sections (2D) and (2DA); and
(ii)it had not been disclosed to the other party in accordance with sub-section (2BA) or (2DC).
As can be seen from these provisions the advice to which s 135A(2D) referred related either to the determination of an impairment or to the refusal to make a determination. The disclosure provisions in s 135A(2DA) required that advice to be accompanied by a copy of all medical reports and affidavits attesting to material on which the insurer, self-insurer or other representative intended to rely or the substance of which they intend to adduce in evidence.
The Accident Compensation Act (Common Law and Benefits) Act 2000 inserted a new Division 8A in Part IV of the Act, which reinstated the right of workers who suffered serious injuries arising out of or in the course of their employment after 20 October 1999, to recover common law damages. Again there were three ‘gateways’ for the establishment of serious injury.[9]
[9]For a useful account of the history of the legislation see Filipovski v Ogemi Services Pty Ltd [2009] VSCA 230, [14] (Neave JA) [88]–[89] (Robson AJA).
As was the case for workers injured before 17 November 1997, s 134AB allows a worker to take proceedings to recover damages if
· he or she is assessed as having a degree of impairment of 30 per cent or more, which deemed to be a serious injury (the ‘deemed injury gateway’);[10]
[10]Section 134AB (15).
· the Authority is satisfied that the injury was a serious injury and has issued a certificate to the worker consenting to the bringing of the proceedings (the ‘certificate gateway’);[11] or
· a ‘court … on the application of the worker made within 30 days after the worker received advice under sub-section (7) or, with the consent of the Authority under sub-section (20), after that period, gives leave to bring the proceedings’.[12]
[11]Section 134AB (16)(a)(i) and (ii).
[12]Sub-section (16)(b).
Similarly to s 135A, s 134AB sets out a timeline for dealing with potential common law claims, the evident purpose of which is to encourage early disclosure of information relevant to the settlement. According to the final report of the Accident Compensation Act Review[13] approximately 74 per cent of claims are resolved through the statutory conferencing process.
[13]Peter Hanks QC, Accident Compensation Act Review, Final Report (2008).
The process of offer and counter-offer can be briefly described as follows. A worker cannot make an application under s 134AB unless assessments of the worker’s degree of impairment have been made under s 104B(3) and the worker has advised the Authority that he or she accepts the assessment or has received the advice of the Authority[14] under s 104B(10).[15]
[14]Reference is also made to the self-insurer. Since that is irrelevant to the facts of this case, I do not refer to the self-insurer hereafter.
[15]This requires the Authority to within 60 days of obtaining the opinion of a Medical Panel advise the worker of the opinion and the entitlement if any under s 98C (which provides a formula for calculating non-economic loss) or 98E (the Table of Maims).
Under s 134AB(5) the worker’s application
(b)must be accompanied by –
(i)a copy of all medical reports; and
(ii)affidavits attesting to such other material –
Existing when the application is made and of which the worker or his or her legal representative is aware and on which the worker intends to rely, or the substance of which the worker intends to adduce in evidence, in proceedings in accordance with this section …
Sub-sections 134AB(7) to (11) then provide as follows:
(7)The Authority or self-insurer must, within 120 days (or such other period as may be specified in directions made under section 134AF) of receiving the application, advise the worker in writing—
(a)that the worker is deemed to have a serious injury; or
(b)if the worker is not deemed to have a serious injury, whether or not the Authority or self-insurer will issue a certificate under sub-section (16)(a).
(8)The advice referred to in sub-section (7)(a) must be accompanied by—
(a)a copy of all medical reports; and
(b)affidavits attesting to such other material—
existing when the advice is given and of which the employer, Authority or self-insurer or the legal representative of any of them is aware and on which they intend to rely or the substance of which they intend to adduce in evidence in proceedings brought by the worker in accordance with this section or in any related proceedings.
(9)If the Authority or self-insurer fails to advise the worker in writing within the period referred to in sub-section (7) as required by sub-section (7), the worker is deemed to have suffered a serious injury.
(10)The worker, within 28 days after receiving the advice referred to in subsections (7) and (8), may give to the Authority or self-insurer an affidavit attesting to such further material (whether or not existing before the worker made the application under sub-section (4)) in rebuttal of the material (other than medical reports) attested to in affidavits accompanying the advice.
(11)In proceedings in accordance with this section, a medical report or other material is inadmissible in evidence—
(a)on behalf of the Authority or self-insurer if—
(i)it was in existence, and the employer, Authority or self-insurer, or the legal representative or any of them, was aware of it, before the date by which the advice of the Authority or self-insurer is required to be given under sub-sections (7) and (8); and
(ii)it had not been disclosed to the worker in accordance with sub-sections (7) and (8); or
(b)on behalf of the worker if—
(i)it was in existence, and the worker or the worker's legal representative was aware of it, before the expiration of 28 days after receiving the advice under sub-sections (7) and (8); and
(ii)it had not been disclosed to the other party in accordance with sub-section (5) or (10).
The Act then sets out the process which must be completed before common law proceedings are commenced. Except in the case of an application for leave under sub-s(16)(b) a worker cannot commence proceedings unless
· a conference is held within 21 days after the ‘response date’;
· the Authority makes a statutory offer at the conference or after the conference but no later than 60 days after the response date;
· if the worker does not accept the statutory offer within 21 days of its receipt, the worker may make a statutory counter offer;
· the Authority does not accept that counter offer within 21 days after it is made; and
· the proceedings are commenced not earlier than 21 days and not more than 51 days after the counter offer is made.[16]
[16]Section 134AB(12).
The response date is defined as 28 days after the ‘determination date’ expires. If the worker is assessed to have a degree of impairment of 30 per cent or more, the determination date is the date of receipt of advice. If the worker is assessed to have a degree of impairment of less than 30 per cent, it is the date on which a certificate is issued under sub-s (16)(a) in relation to the injury, or, the date on which a court gives leave under sub-s (16)(b) or the date on which any appeal is determined.[17]
[17]Section 134AB(37).
The Explanatory Memorandum to the legislation says that:
New sub-sections (7) to (9) require the Authority or self-insurer to respond to an application under sub-section (4) within 120 days and impose a number of requirements and conditions in relation to that response.
New sub-section (10) provides the worker with the opportunity to make a limited response in return.
New sub-section (11) operates to make certain material required or permitted by the preceding provisions to have been forwarded with the worker’s application and response and the Authority or self-insurer’s response respectively inadmissible in evidence in proceedings in accordance with the new section if it had not been disclosed as required or permitted.
New sub-sections (12) to (14) establish a pre-litigation compulsory conference and statutory offer and counter offer process.
It may be observed that the provisions relating to statutory conferences and offers[18] are effectually identical to the provisions in s 135A as it stood after the 1997 Act. These provisions continue to apply to injuries arising before that Act came into operation.
[18]Sub-sections (2DE)–(2DG).
As the above account indicates, the provisions relating to recovery of common law damages have been frequently amended and re-structured between 1992 and 2000. In addition the Act contains provisions to preserve the entitlements of workers injured at different times. For the reasons discussed below I consider that this process has resulted in a draftsman’s error. This has produced an unintended limitation on sub-s (7) and consequently on sub-ss (8) and(11) which is inconsistent with the purpose of the disclosure requirements and the inadmissibility provision in sub-ss (7),(8) and (11).
Because sub-s (8) refers only to sub-s (7)(a), sub-s (11), if literally interpreted is inapplicable if the worker relies on the certificate gateway. This is the case even though the conference and statutory offer provisions apply in these circumstances. By contrast, if the worker was injured between 1 December 1992 and 12 November 1997 and relies on s 135A, the disclosure requirements apply to both the deemed injury and certificate gateways, as does an almost identical conference and statutory offer process.
If the sub-sections are interpreted in this way, the disclosure obligation of an injured worker is more extensive than that imposed on the Authority and non-disclosure has a more draconian effect on the worker than on the Authority. This is because sub-s (5) of the Act requires a worker’s application to be accompanied by a copy of all medical reports and affidavits attesting to other material existing when the application is made of which the worker is aware and on which the worker intends to rely, or the substance of which the worker intends to adduce in evidence. Under sub-s (10), after receiving the advice given by the Authority (which may be either advice that the worker is deemed to have a serious injury or is not deemed to have a serious injury and that the Authority will or will not issue a certificate) the worker may provide an affidavit attesting to further material in rebuttal of the material attested to in the Authority’s affidavits. If this does not occur the medical reports and other material in existence and known to the worker at the relevant times are inadmissible.
By contrast, if sub-s (11) is literally interpreted, the Authority only has an obligation to disclose medical reports and other material in circumstances where the worker is deemed to have a serious injury. The disclosure requirement does not apply where the worker relies on the certificate gateway. This is despite the fact that the conference and statutory offer process applies both to the deemed serious injury and certificate gateways.
In my opinion, the literal interpretation is inconsistent with the purpose of sub-s (11) which, as I have said, is to encourage early disclosure and settlement wherever possible in circumstances where the Authority accepts that the worker may be entitled to recover common law damages.. Having regard to that legislative purpose, and to the unlikelihood that Parliament would have intended to make different provisions relating to the inadmissibility of evidence depending on the date of the injury and whether the evidence is relied upon the worker or the Authority, I do not consider that it goes beyond the proper process of statutory interpretation to interpret sub-s (11) as applying both to the deemed injury gateway and the certificate gateway.
In Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation[19] the High Court held that there was a drafting error in s 80C(3) of the Income Tax Assessment Act 1936 (Cth) and that the purpose of the provision was sufficiently clear to permit departure from the literal meaning of the section and the implication of additional words. Mason and Wilson JJ referred to the literal and ‘so-called golden rules’ of construction. They said that:
In some cases in the past these rules of construction have been applied too rigidly. The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. But in performing that task the courts look to the operation of the statute according to its terms and to legitimate aids to construction.
The rules, as D C Pearce says in Statutory Interpretation, p 14, are no more than rules of common sense, designed to achieve this object. They are not rules of law. If the judge applies the literal rule it is because it gives emphasis to the factor which in the particular case he thinks is decisive. When he [sic] considers that the statute admits of no reasonable alternative construction it is because (a) the language is intractable or (b) although the language is not intractable, the operation of the statute, read literally, is not such as to indicate that it could not have been intended by the legislature.
On the other hand, when the judge labels the operation of the statute as ‘absurd’, ‘extraordinary’, ‘capricious’, ‘irrational’ or ‘obscure’ he assigns a ground for concluding that the legislature could not have intended such an operation and that an alternative interpretation must be preferred. But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.
Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended.[20]
Their Honours considered that the section, read literally, would have a capricious and irrational effect. They and the other members of the majority read additional words into the legislation to avoid that result.
[19](1981) 147 CLR 297.
[20]Ibid 320–1.
In Victorian WorkCover Authority v Wilson,[21] this Court declined to interpret literally a provision of the Act which, if so read, deprived a worker of the right to have a determination as to whether the worker had an injury amounting to a total loss of capacity referred to a Medical Panel, because the condition precedent for reference to the Panel in s 104B(9), which referred to earlier provisions in sub-ss (5)(a) and (b), was not satisfied.
[21][2004] VSCA 161 (‘Wilson’).
Callaway JA said that:[22]
I do not think that sub-s (9) should be construed literally. Parliament must have intended that a dissatisfied worker would be able to cause not only the medical question corresponding with sub-s (5)(a) but also the medical question corresponding with sub-s (5)(b) to be referred to a medical panel. Parliamentary counsel may have been under the mistaken impression that a worker dissatisfied with a determination under sub-s (5)(b) would necessarily dispute one of the assessments, but that is not so. The question whether a worker has an injury which is a total loss mentioned in the table in s 98E is independent of an assessment as to his or her degree of impairment resulting from the injury.
In those circumstances, the Court should read in the words that are necessary to make sense of sub-s (9). In his dissenting but influential judgment in Kingston v Keprose Pty Ltd[23] McHugh JA referred to the three conditions which Lord Diplock had said, in Jones v Wrotham Park Settled Estates[24], must be satisfied before words could be read into a statute. First, the court must know the mischief with which the Act was dealing. Secondly, the court must be satisfied that, by inadvertence, Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved. Thirdly, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect.
Those conditions are satisfied in the present case. It is unnecessary to decide whether they are necessary or necessary and sufficient or usually necessary and sufficient.[25] The Act itself, without the need for reference to any extrinsic materials, discloses what Parliament must have intended and that the opening words of sub-s (9) could not have been intended to prevent recourse to a medical panel if the worker disputed only the determination or the entitlement to compensation advised by the Authority.[26] Sub-section (9) applies after the Authority is advised by the worker pursuant to sub-s (7). Sub-section (7) expressly recognizes that the worker may accept both the assessments but still dispute the entitlement to compensation. If the respondent’s contentions as to the meaning of sub-s (5)(b) are accepted, it is necessary to read in the words ‘or the determination’ after ‘either of the assessments’ in sub-s (9). If the Authority’s contentions are accepted, it is necessary to read in the words ‘or the entitlement to compensation’ after ‘either of the assessments’.[27]
[22]Ibid [25]–[27].
[23](1987) 11 NSWLR 404 (‘Kingston’), 422–3.
[24][1980] AC 74, 105–6.
[25]See R v Young (1999) 46 NSWLR 681, 685–91, 730–41.
[26]Compare Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297.
[27]As originally enacted, sub-s (9) did refer to ‘the assessment and the entitlement to compensation’. Unfortunately, even in that version, it appeared to be a condition precedent that the worker dispute both the assessment and the entitlement. For similar reasons to those given above, it would have been necessary to read ‘and’ as ‘or’. The words ‘either of the assessments’ were substituted for ‘the assessment and the entitlement to compensation’ by s 16(4)(d)(i) of the Accident Compensation (Common Law and Benefits) Act 2000.
Callaway JA discussed two possible ways of emending the section. He concluded that the reading which would produce a symmetrical result between the Authority and the worker should be accepted.
Winneke P commented that ‘to make the section work in the manner intended, a “circuit–breaker” was needed’.[28] After referring to the fact that the many amendments to the Act made by successive parliaments had created a number of difficulties of interpretation, he said that this would be achieved if sub-s (9) were construed in the manner suggested by Callaway JA.[29] Nettle JA also held that it would be inappropriate to interpret the section literally, though he interpreted the provisions differently from the majority.
[28][2004] VSCA 161, [6].
[29]Ibid [3].
Similarly in Bermingham v Corrective Services Commission of New South Wales[30] the New South Wales Court of Appeal court read words into the Prisoners (Interstate Transfer) Act 1982 (NSW) in order to achieve its statutory purpose. The Prisoners (Interstate Transfer) Act 1982 (NSW) provided that a prisoner who was transferred interstate was to be entitled ‘to any remission of the sentence of his imprisonment to which he was eligible in respect of that sentence of imprisonment’ in the State from which he was transferred. If interpreted literally the prisoner was not entitled to any remission available to reduce the minimum sentence. It was held that the provision should be read as if the words ‘sentence of imprisonment’ also referred to the minimum term of imprisonment.
[30](1988) 15 NSWLR 292.
McHugh J said that:
In Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404, I set out in some detail (at 421-424) the principles applicable in giving legislation a purposive construction. The passage is too long to set out at length. But in the course of that judgment I pointed out that the grammatical meaning of a provision is not to be taken to represent Parliament’s intention as to its meaning when the context or the purpose of the provision raises a real doubt about the applicability of the grammatical meaning. If purpose or context to raise a real doubt as to whether Parliament intended the grammatical meaning to apply, a court is entitled to depart from that meaning. Moreover, if the grammatical meaning gives rise to injustice or anomaly, it may strengthen the conclusion that the Parliament did not intend the grammatical or literal meaning to apply.
Once the court concludes that the grammatical meaning does not accord with the purpose of the legislation, ‘… it is often legitimate, because it is necessary, to put a strained interpretation upon some words which have been inadvertently used’: Sutherland Publishing Co Ltd v Caxton Publishing Co Ltd [1938] Ch 174 at 201. But as the cases to which I referred (at 422-423) in Kingston v Keprose Pty Ltd show, it is not only when Parliament has used words inadvertently that a court is entitled to give legislation a strained construction. To give effect to the purpose of the legislation, a court may read words into a legislative provision if by inadvertence Parliament has failed to deal with an eventuality required to be dealt with if the purpose of the Act is to be achieved.
In Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275 this Court applied the principles formulated by Lord Diplock in Wentworth Securities Ltd v Jones [1980] AC 74 at 105-106 concerning the circumstances in which a court may read words into a legislative provision to give effect to its purpose. Lord Diplock said that a court may read words into a statutory provision when three conditions are fulfilled. First, the court must know the mischief with which the Act was dealing. Secondly, the court must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved. Thirdly, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect.[31]
[31]Ibid 302.
Similarly, in Newcastle City Council v GIO General Limited[32] McHugh J, with whom other members of the Court agreed, said that:
As Brennan CJ and I said in IW v City of Perth,[33] even when a court adopts a purposive construction to remedial legislation it ‘is not at liberty to give it a construction that is unreasonable or unnatural’.
Nevertheless, when the purpose of a legislative provision is clear, a court may be justified in giving the provision ‘a strained construction’[34] to achieve that purpose provided that the construction is neither unreasonable nor unnatural. If the target of a legislative provision is clear, the court’s duty is to ensure that it is hit rather than to record that it has been missed.[35] As a result, on rare occasions a court may be justified in treating a provision as containing additional words if those additional words will give effect to the legislative purpose.
[32](1997) 191 CLR 85, 113.
[33](1997) 191 CLR 1, 12.
[34]Kingston (1987) 11 NSWLR 404, 422; Sutherland Publishing Co Ltd v Caxton Publishing Co Ltd [1938] Ch 174, 201.
[35]Kingston (1987) 11 NSWLR 404, 424, citing Lord Diplock in ‘The Courts as Legislators’, The Lawyer and Justice (1978), 274.
Counsel for the respondent said that the distinction between ‘deemed injury’ and ‘certificate’ cases was explicable by the fact that the Minister said in his Second Reading Speech that the deeming process was the main means by which seriously injured workers would have access to common law rights. I do not consider that reasoning persuasive because, as I have pointed out the conference and statutory offer process applies in both situations.
The respondent also relied on the fact that the time limit for the statutory process of conferencing and statutory offers begins to run at different dates, depending on whether the injury is deemed to be serious or a certificate has been given.
In my view the fact that the ‘response date’ (that is the date from which a time limit begins to run) depends on whether the worker relies on a deemed injury or the certificate gateway does not provide any rationale for limiting the operation of sub-s (7) to the case of deemed injury. In deemed injury cases, disputes about the quantum of damages would appear to be less likely to occur between the Authority and the injured person than in cases where the worker relies on the certificate gateway, so that subsequent litigation is less likely to occur. In that respect I agree with the submission made on behalf of the appellant that disclosure is more likely to be needed in certificate than in deemed injury cases.
Counsel for the respondent also relied on the difference between the language of s 134AB and s 135, which is said to reflect a difference in parliamentary intention. Counsel for the respondent was unable to explain the purpose of imposing more rigorous disclosure requirements on the Authority in relation to workers injured before 12 November 1997 than on those injured after 1 October 1999. In my opinion there is no rational explanation why Parliament would have distinguished between cases covered by s 134AB and by s 135A, when the same conference and statutory offer processes apply in both situations.
In Wilson, the terms of the legislation had changed, but Winneke P did not see anything in the amendments suggesting a deliberate intention to interfere with previous purpose.[36] I would take a similar view here.
[36][2004] VSCA 161, [4].
The consequence of the literal interpretation is that a worker is penalised if he or she fails to disclose evidence, whilst the Authority is not. Further, workers injured before 12 November 1997 have less onerous disclosure obligations than those injured after 1 October 1999. In the absence of any explanation by Parliament, particularly in the Second Reading Speech, and any obvious rationale supporting these distinctions, I consider it most unlikely they were intended.
In my opinion s 134AB(7)(a) should be read so that the word ‘that’ means ‘whether or not’. This avoids asymmetry between the disclosure requirements imposed on the Authority and the worker. It also treats workers injured before 12 November 1997 and those injured after 1 October 1999 in the same way and does no grammatical violence to the language of sub-s (7)(b).
My view is reinforced by the fact that sub-s (11) refers to ‘proceedings in accordance with this section’, in circumstances where the section deals with all three gateways. For the purposes of this decision it is unnecessary to decide whether sub-s (11) applies to cases where a worker seeks leave from a court under sub-s 16(b), as well as where the worker relies on the deemed serious injury or certificate gateway in sub-s 16(a). However the fact that the conference and statutory offer process does not apply to sub-s 16(b) cases, suggests that sub-s (11) may be confined to deemed injury and certificate situations. I also note that sub-ss (11)(a)(i) and (ii) refer to sub-ss (7) and (8), rather than only to sub-s (7)(a), although admittedly sub-s (8) refers to sub-s 7(a)
I now turn briefly to the meaning of the words ‘other material’ in sub-s (11). The reference to ‘other material’ in sub-s (11) picks up the reference in sub-s (8) to ‘affidavits attesting to such other material … on which the [Authority intends] to rely or the substance of which they intend to adduce in evidence in proceedings brought by the worker in accordance with this section or in any related proceedings’.
The purpose of sub-s (11) is to prevent one party being taken by surprise by the other party’s non-disclosure of evidence. The Authority submits that it covers only material such as a witness statements, of which the Authority is aware at the relevant date. On that view the trial judge correctly held that despite the Authority’s failure to depose to the substance of Mrs Hughes’ evidence, it could call her as a witness.
The expression ‘other material’ is not a term of art. It does not seem to me that the language of sub-s (11) or its legislative context requires ‘other material’ to be read narrowly. That interpretation would, in my view, undermine the purpose of requiring disclosure of material known to the Authority in order to facilitate the statutory offer process. Further, sub-s (11) makes inadmissible the ‘other material’ and not merely the ‘affidavit attesting to the other material’. I therefore consider that his Honour erred in allowing Mrs Hughes to give evidence, the substance of which was not disclosed to the worker in accordance with sub-ss (7) and (8).
Finally, I agree with Redlich JA and Habersberger AJA, for the reasons they give, that if the disclosure requirement in sub-ss (7) and (8) did apply to the evidence
of Mrs Hughes, the language of sub-s (11) does not leave the trial judge with any residual discretion to permit her to testify. If, contrary to the view expressed above, her evidence was admissible, I also agree with their Honours that the trial judge had no discretion to exclude the evidence on the grounds of unfairness to the appellant.
REDLICH JA:
HABERSBERGER AJA:
The appellant seeks to set aside a judgment of the County Court in favour of the respondent following the verdict of a jury which rejected her claim for damages for personal injuries on the basis that the appellant did not ‘suffer an injury to her left knee whilst at work on or about 12 December 2000’.
The first two grounds of appeal were that:
1.His Honour erred in permitting the Respondent/Defendant to call Lorraine Hughes as a witness in the trial as the Respondent/Defendant had failed to comply with provisions of Sub Sections (7), (8) and (11) of Section 134AB of the Accident Compensation Act 1985 (the Act) in that it had obtained a statement from the proposed witness and had not served such statement at the time of the advice.
2.His Honour erred in ruling that Lorraine Hughes could be called as a witness in the trial when the Respondent/Defendant had a statement from her prior to the date of the advice but had failed to serve such statement or an outline of the contents thereof in the advice thus making evidence from her to be inadmissible.
At the relevant time, s 134AB(7), (8) and (11) of the Accident Compensation Act 1985 (‘the Act’) provided as follows:
(7)The Authority or self-insurer must, within 120 days (or such other period as may be specified in directions made under section 134AF) of receiving the application, advise the worker in writing—
(a) that the worker is deemed to have a serious injury; or
(b)if the worker is not deemed to have a serious injury, whether or not the Authority or self-insurer will issue a certificate under subsection (16)(a).
(8) The advice referred to in subsection (7)(a) must be accompanied by—
(a) a copy of all medical reports; and
(b) affidavits attesting to such other material—
existing when the advice is given and of which the employer, Authority or self-insurer or the legal representative of any of them is aware and on which they intend to rely or the substance of which they intend to adduce in evidence in proceedings brought by the worker in accordance with this section or in any related proceedings.
(11)In proceedings in accordance with this section, a medical report or other material is inadmissible in evidence—
(a) on behalf of the Authority or self-insurer if—
(i)it was in existence, and the employer, Authority or self-insurer, or the legal representative or any of them, was aware of it, before the date by which the advice of the Authority or self-insurer is required to be given under subsections (7) and (8); and
(ii)it had not been disclosed to the worker in accordance with subsections (7) and (8); or
(b) on behalf of the worker if—
(i)it was in existence, and the worker or the worker's legal representative was aware of it, before the expiration of 28 days after receiving the advice under subsections (7) and (8); and
(ii)it had not been disclosed to the other party in accordance with subsection (5) or (10).
On 13 September 2006 the worker had applied to the Authority, pursuant to s 134AB(4) of the Accident Compensation Act 1985 (‘the Act’), for a determination that she had a ‘serious injury’ and was therefore entitled to bring common law proceedings in respect of her injury. Pursuant to s 134AB(5)(b) of the Act, the worker’s application had to be:
… accompanied by—
(i) a copy of all medical reports; and
(ii) affidavits attesting to other material—
existing when the application is made and of which the worker or his or her legal representative is aware and on which the worker intends to rely, or the substance of which the worker intends to adduce in evidence, in proceedings in accordance with this section or in any related proceedings.
By a letter dated 11 January 2007 the Authority advised the worker, pursuant to s 134AB(7) of the Act, that her degree of impairment was less than 30% and that she was therefore not deemed to have a serious injury, but that, pursuant to s 134AB(16)(a) of the Act, the Authority was satisfied that the injury was a ‘serious injury’ and that it would issue to her a certificate in writing consenting to the bringing of the proceedings (‘the advice’). Enclosed with the advice were medical reports and affidavits upon which the Authority stated it intended to rely in any subsequent legal proceedings. Also enclosed was a draft defence which denied the happening of the incident alleged to have caused the worker’s injury.
At the time of the advice the Authority’s solicitors had in their possession a statement of Mrs Lorraine Hughes dated 19 April 2002. Neither this statement nor any affidavit of Mrs Hughes was enclosed with the advice.
Following the issuing of the certificate by the Authority pursuant to s 134AB(16)(a)(ii) of the Act, the worker commenced proceedings, claiming damages in respect of the injury, on 11 April 2007.
In both her Worker’s Claim for Compensation form dated 9 May 2001 and in a statement made by her to a workcover investigator dated 19 April 2002, the worker had nominated Mrs Hughes as an eye witness to the accident in which she claimed to have sustained the injury. However, Mrs Hughes was not listed as a witness by the worker when the jury panel was called at the trial. Nor was Mrs Hughes mentioned by senior counsel for the worker in his opening address to the jury.
In evidence in chief, the worker gave the following evidence:
At the time that you hit your leg, were the other women in their work stations?---Yes.
Can you remember who the other women in their work stations were at that time?---Lorraine Hughes was sitting straight towards to me and she saw what happen and she’s come and seen what ---
Loraine Hughes, did you say?---Lorraine Hughes, yeah.
When you say straight to you, was she on the same side of the table or the other side?---No she’s doing other things opposite us, filling the mascara.
In cross-examination, the worker was asked:
It is your evidence that Lorraine Hughes was seated nearby and saw the whole thing happen?---Yes.
You are positive about that?---Yes.
You identify her in your claim form that you filed in support of this case, do you not?---Yes.
You are positive she saw the lot?---Yes.
Later, the worker was asked in cross-examination:
What about Lorraine Hughes, the witness you say saw this, are you bringing her to this court to give evidence on your behalf?---Yeah, if it’s possible.
You are?---If it’s possible, I don’t know.
The worker repeated several times that Mrs Hughes had witnessed the incident.
It was then put to her several times in cross-examination that Mrs Hughes would be giving evidence denying that she saw any incident:
I put to you that Lorraine Hughes is going to come to this court and give evidence and she’s going to emphatically deny ever witnessing the event you’ve described. What do you say about that?---Not true.
Not true?---No.
Any reason you can think of why Lorraine would have that evidence to give in this court?---I don’t know.
What she will say is that she saw you on a date she doesn’t recall when you grazed your foot against the pallet, when your left foot grazed the pallet. Do you remember that incident?---Yes.
And she will say she saw that incident?---No.
No?---That was mixed up.
She is mixed up?---That was mixed up.
Could you repeat that?---Occasionally they were mixed up.
By whom?---By – obviously by Lorraine or – I don’t know.
HIS HONOUR: You’re saying that Lorraine Hughes was not present when you grazed your ankle on the pallet?---Maybe, but she was present when I hit the table because she was first come to me and ask me am I alright.
…
Lorraine Hughes is going to give evidence in this case and she will deny that she witnessed or assisted you, when you had a fall, either in October or December of 2000, against a metal leg. What do you say to that?---Nothing.
She is saying it didn’t happen, in her opinion?---It is happen [sic].
…
I am putting to you, that Lorraine Hughes did not witness any incident that you described in October or December of 2000. What do you say to that?---She did.
She did?---If she’s change her mind, that’s up to her.
Why do you say she’s changed her mind?---I don’t know.
Following this puttage, much of which was conceded to be improper,[37] counsel for the worker at the conclusion of the worker’s case and before the Authority commenced its case, made certain inquiries of the Authority’s legal representatives. As a result, the worker’s counsel were provided with a copy of Mrs Hughes’ statement dated 19 August 2002. Objection was then taken by counsel for the worker to the Authority calling Mrs Hughes. Her evidence was said to be inadmissible by virtue of s 134AB(11) of the Act as the Authority, when giving the advice required by s 134AB(7), had not complied with the requirement specified in sub-s (8), that it disclose the ‘material’ or the ‘substance of the evidence’ which it intended to adduce in the proceedings.
[37]Palmer v The Queen (1998) 193 CLR 1 [7]–[10]; R v Cupid[2004] VSCA 183 [28]; R v Bajic (2005) 12 VR 155, 169 [77].
The learned trial judge heard argument on the matter and ruled that he would permit the Authority to call evidence from Mrs Hughes. His Honour subsequently gave written reasons for his ruling. He held that the Authority should have been aware that Mrs Hughes was:
a material witness and that it would be necessary to obtain a statement from her and include the substance of her evidence in its advice to the plaintiff. On the face of it then the prohibition contained in subsection (11) should apply.
His Honour considered that:
By the time the plaintiff left the witness box I, and I am confident that the jury, thought that Lorraine Hughes would be called as a witness in the case.
Later his Honour said:
given the way in which the case was conducted by the plaintiff, the plaintiff must be deemed to have waived the protection that it [sic] otherwise had under these subsections and the defendant must be allowed to call evidence from Lorraine Hughes … Given what the plaintiff said about Lorraine Hughes in her evidence-in-chief and the puttage in cross-examination by [senior counsel for the defendant], it would be a travesty of justice if the defendants [sic] were now denied the opportunity to call Lorraine Hughes as a witness.
The worker submits that the trial judge fell into serious error in ruling that the Authority could call Mrs Hughes as a witness in the trial, when he had found that the prohibition specified in sub-s (11) applied. The Authority by a Notice of Contention seeks to uphold the trial judge’s decision on the ground that the worker’s proceeding was not one to which the requirements of s 134AB(7)(a) and (8) applied.
It is convenient to deal first with the Notice of Contention. Where the Authority has advised that a worker was ‘deemed to have a serious injury’ pursuant to s 134AB(7)(a), it is not in doubt that the disclosure obligations set out in sub-s (8) apply. That is one gateway by which the worker may commence proceedings to recover common law damages.[38] The second is where the Authority, pursuant to s 134AB(16)(a), is satisfied that the worker has a serious injury and has certified its consent to the worker bringing such proceedings. This was the present case. By the third gateway, a worker, pursuant to s 134AB(16)(b), may apply for leave of a court to bring the common law proceedings.
[38]See s 134AB(4) and (15).
In support of its Notice of Contention the Authority submitted that the disclosure requirements of sub-s (8) did not arise where the worker commenced common law proceedings following the issue of a certificate by the Authority or where the worker was seeking leave of a court to do so. For the reasons that follow, that contention should be upheld.
Subsection (8) expressly confines the obligation to disclose ‘material’ to the occasion when the worker is advised in writing pursuant to sub-s (7)(a) that he or she is deemed to have a serious injury. In our opinion, there is nothing in the language of sub-s (7) or sub-s (8) or the context in which they are found that can support a construction that the disclosure obligation was intended to apply to proceedings brought with the consent of the Authority or to applications by the worker for leave to commence proceedings.
The approach to disclosure adopted in s 134AB is in marked contrast to disclosure in cases of claims for damages arising before 12 November 1997 provided for in s 135A(2D) and (2DA) of the Act. Those provisions were in existence at the time that s 134AB was introduced. Under those provisions, the disclosures that must be made – which are identical to those set out in s 134AB(8) – must accompany the advice, whether the authority determines the worker’s application or refuses to determine it.
Parliament’s objective intention is to be ascertained from the meaning of the words understood in the light of the ‘background, purpose and object, surrounding circumstances and other matters’.[39] If there is nothing in the context in which the words are used which indicates that the words, if given their plain meaning, will not promote the purposes of the statute, no adjustment of their ordinary meaning may be undertaken.[40] To avoid this approach to construction the appellant identified anomalies which it was said would arise if the disclosure obligations did not extend to proceedings commenced via s 134AB(16)(a) or (b). Such an outcome could not have been intended so that a construction which departed from the literal meaning of sub-s (8) was justified.
[39] Singh v Commonwealth(2004) 222 CLR 322 [19] (Gleeson CJ).
[40]CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ).
The appellant submitted that limiting the disclosure requirements to the first of the three gateways made no sense because there was no reason to distinguish between them. Such a construction would deprive the worker of the benefits of full disclosure in the very case where it was most needed, namely the ‘leave’ gateway. It was also unfair and illogical because no such distinction was drawn in respect of the worker’s obligation to make disclosure pursuant to s 134AB(5) and (10) of the Act.
The appellant drew attention to certain statutory requirements that must be met before a worker may commence common law proceedings through any of the above gateways including, in particular, the statutory requirement that there be a conference between the worker and the Authority or self insurer,[41] that the Authority or self insurer must make a statutory offer of settlement,[42] and that the worker must accept that offer or make a statutory counter offer[43]. The Act stipulates that the costs of the proceedings for recovery of damages will be determined by reference to the statutory offer and statutory counter offer.[44] For example, if the judgment is for no more than the statutory offer the worker must pay the party and party costs of the Authority or self-insurer.[45] The appellant submitted that the legislative scheme rests upon the assumption that full disclosure will have been made so that the worker can make an informed assessment as to the reasonableness of the statutory offer and, if it is rejected, make a fully informed statutory counter offer.
[41]Section 134AB12(a).
[42]Section 134AB(12)(b).
[43]Section 134AB(12)(c). The Act also makes provision for deemed statutory offers (sub-s (13)) and statutory counter offers (sub-s (14)) where none are made.
[44]Section 134AB (28).
[45]Section 134AB (28)(c).
It was pointed out that the disclosure requirements of sub-s (8) are in some respects more extensive than the obligations of discovery. It would work great unfairness, it was said, if the disclosure obligation did not extend to each gateway so that the worker had the benefit of full disclosure prior to the parties embarking upon the statutory process of offer, acceptance or counter offer. Accordingly, it was submitted that Parliament must have intended that it be so.
The statutory process of the ‘conference’ followed by an ‘offer’ must commence within 21 days of the ‘response date’[46] which is defined in sub-s (37) as being the date 28 days after the ‘determination date’. The ‘determination date’ is also defined in sub-s (37). It is the date when the worker receives the advice under sub-s (7) that he or she has a degree of impairment of 30 per centum or more,[47] or the date on which the certificate is issued by the Authority under sub-s (16)(a),[48] or the date on which a court grants leave to proceed pursuant to sub-s (16)(b).[49] To determine when time commences to run, Parliament thus drew a distinction between the advice given under sub-s (7)(a), the issuing of a certificate under sub-s (16)(a) and the granting of leave to proceed under sub-s (16)(b).
[46]Section 134AB12(a).
[47]Section 134AB (37)(a).
[48]Section 134AB (37)(b)(i).
[49]Section 134AB (37)(b)(ii).
Where the worker’s injury is deemed to be a serious injury, then upon the giving of advice to that effect, time commences to run for the holding of a conference and the making of statutory offers. The obligation to disclose thus accompanies the giving of the advice. One possible reason for that approach may be found in the second reading speech in which the Minister stated that:
the Government sees the deeming test to be the main gateway for access to common law rights.
On the other hand, there are reasons why the legislature may have concluded that it was unnecessary for the disclosure obligations to apply to the other gateways which were not thought would be a primary means of access to common law rights.
In dealing with the ‘leave’ gateway, sub-s (12) expressly provides that the statutory process under that subsection does not apply to applications for leave under sub-s (16)(b) and by implication the statutory process of conference and offers will only commence after leave has been granted. By that time there will have been a fully contested leave application in which the issues of whether the applicant sustained a serious injury and whether it was in compensable circumstances will have been fully ventilated. As has proved to be the experience to date, extensive affidavits are generally filed and medical and other experts reports exchanged in accordance with the Rules of Court. Although the discovery made in compliance with Court Rules will not necessarily result in disclosure of some material bearing upon common law liability, the hearing of a contested leave application may provide a further reason why Parliament chose not to extend the disclosure obligation to ‘leave’ applications or to proceedings which commence following the granting of leave.
As to the remaining gateway, there is nothing to suggest in the second reading speech or the Parliamentary debates that Parliament considered that in the circumstances where the Authority was satisfied that the worker had sustained a serious injury and issued a certificate consenting to the bringing of proceedings, that it was likely to be other than a rare occurrence that the proceedings would involve a contest between the parties as to liability or that this was a gateway that was likely to be commonly utilised. Nor was it suggested during argument that it is common for the Authority to issue a certificate and contest the proceedings in the manner which occurred in the present case.
Whether or not these were considerations which were entertained by the legislature and which may explain why the duty to disclose was so confined, we can see no permissible basis upon which sub-s (7) can be construed in the manner proposed by the appellant. To construe ‘advice’ in sub-s (7)(a) as covering advice that the worker does not have a deemed serious injury or to construe sub-ss (7) and (8) so as to extend the disclosure obligation to proceedings commenced following the issuing of a certificate of consent or the granting of leave to proceed, would in our view amount to rewriting the clause and would exceed the proper bounds of statutory interpretation[50] so as to traverse ‘beyond interpretation to interpolation and therefore into an exercise of legislative power’.[51] It is for Parliament to determine whether it wishes to extend the obligations of disclosure to these other gateways. Whilst there is much to be said for the view that the obligations of disclosure logically should apply to all three gateways to avoid unfairness, it is not possible to reach that conclusion when sub-s (8) refers only to advice in sub-s (7)(a).[52]
[50]Smith v The Queen(1994) 181 CLR 338, 346 (Mason CJ, Dawson, Gaudron and McHugh JJ).
[51]‘Legal Interpretation – The bounds of legitimacy’ – Sydney Law School – Murray Gleeson – 16 September 2009, 14.
[52]Victorian Workcover Authority v Vitoratos [2005] VSCA 261 [4] (Callaway JA), [18] (Buchanan JA).
The appellant also relied upon the Ministerial Directions issued pursuant to s 134ABF and s 20C of the Act in support of the submission that the disclosure requirements applied to all three gateways and not just to the deeming gateway under sub-s (7)(a). In particular, the appellant relied on the definition of ‘advice’ in Direction 3 and Directions 7.1 and 7.4. They read as follows:
3. Definitions
In these Directions:
…
“advice” means the advice of the Authority or self-insurer referred to in Sections 134AB(7) and (8) of the Act.
7. The advice
7.1 The advice of the Authority or self-insurer must be accompanied by:
(a) a copy of all medical reports; and
(b) affidavits attesting to such other material,
existing when the advice is given and of which the employer, Authority or self-insurer (or the legal representative of any of them) is aware and on which they intend to rely or the substance of which they intend to adduce in evidence.
…
7.4Any affidavits from other witnesses must contain the substance of any evidence of the deponent which the employer or self-insurer intends to adduce in evidence, including the substance of any surveillance reports and exhibits of any surveillance film on which they intend to rely or the substance of which they intend to adduce in evidence.
We do not consider that the Ministerial Directions advance the appellant’s case. They contain no direction inconsistent with the meaning which we consider must be given to sub-s (7)(a) and (8). They cannot be given a construction broader than the provisions of the Act under which they are made.[53] As Brennan J said in Webster v McIntosh:[54]
the intention of Parliament in enacting an Act is not to be ascertained by reference to the terms in which a delegated power to legislate has been exercised.
The Directions do not contain any sanction for breach of Direction 7. It is the Act which makes the ‘material’ inadmissible. Thus, the definition of ‘advice’ in Direction 3 must be read as the advice referred to in sub-s (7)(a) and (8) and nothing else. Direction 7.1 uses the same language as sub-s (8) and therefore must have the same meaning. Direction 7.4 must be read as referring to ‘affidavits attesting to such other material’ (sub-s (8)(b)) and not, as discussed below, to affidavits simply containing the evidence of witnesses, or the substance of the evidence of those witnesses, on which the Authority intends to rely.
[53]Shanahan v Scott (1957) 96 CLR 245, 250 (Dixon CJ, Williams, Webb and Fullagar J); Accident Towing and Advisory Committee v Combined Motor Industries Pty Ltd [1987] VR 529, 577–8 (Southwell J).
[54](1980) 32 ALR 603, 606 (Deane and Kelly JJ agreed with Brennan J). See also Accident Towing and Advisory Committee v Combined Motor Industries Pty Ltd [1987] VR 529, 577 (Southwell J).
This brings us to an alternative argument of the Authority. It contends that even if, contrary to its primary submission, it was required to disclose material by s 134AB(8) and had failed to do so, sub-s (11) did not preclude it from calling the witness. That submission must also be accepted.
Subsection (8) requires the advice given under sub-s (7) to be accompanied by an affidavit which attests ‘to such other material’ which exists and of which the Authority is aware. The obligation is to attest to that material or the substance of it, if the Authority intends to rely on that material or to adduce the substance of that material in evidence in the proceedings[55]. It is the ‘material’ which is rendered inadmissible by sub-s (11) in the event of non compliance with sub-ss (7) and (8).
[55] Similar obligations of disclosure are placed on a worker under sub-ss (5) and (10).
For example, where the Authority is obliged to make disclosure and is in possession of a surveillance video, it will be obliged to attest as to the video if it intends to rely upon it. If the surveillance is recorded by way of a report, the Authority will be obliged to attest to the report or the substance of it that they intend to adduce in evidence. A failure to comply with this obligation would mean that the material – the video or the report – would not be admissible in evidence. But sub-s (11) does not preclude the worker or the Authority from calling a witness to testify as to matters which are contained within the ‘material’, even if there has been a failure to disclose the ‘material’ or the substance of it.
In the present case, even if the authority had been under a duty to attest as to Mrs Hughes’ statement or the substance of her evidence that it intended to adduce, it was not on that ground precluded from calling her as a witness. Consequently, the Authority was entitled to call the witness and no error occurred in his Honour so ruling. The witness’ statement being inadmissible in evidence ‘on behalf of the Authority’, it would not have been permitted during the course of her evidence to use her statement to bolster her credit. Subject to the rules of evidence, the worker was free to utilise the statement as she saw fit in the course of the trial. This is in fact what happened. Mrs Hughes, having refreshed her memory from her statement of 19 April 2002, was cross-examined about what she had said in it.
Finally, each party sought to rely in the alternative upon an asserted discretion either to admit (in the case of the Authority) or to exclude (in the case of the worker) the evidence of the witness in the event that their preferred construction of the provisions was rejected. Thus, the worker submitted that if sub-s (7) was to be construed so that the disclosure obligation did not apply to the Authority in the present circumstances, the trial judge, despite the relevance of the evidence, should have excluded such evidence in the exercise of his discretion. Conversely, the Authority argued that if the duty of disclosure was applicable, so that the evidence was inadmissible in accordance with sub-s (11), the trial judge was entitled, as a matter of discretion, to permit the Authority to adduce the evidence in the proceedings. It was submitted that the trial judge was exercising that discretion when he concluded that it would be ‘a travesty of justice’, having regard to the manner in which the plaintiff’s case had been conducted, if the Authority could not introduce such evidence.
Neither party was able to cite any authority in the course of oral argument for the existence of such a discretion. Both parties were given leave to file a further written submission on this issue. In the worker’s further written submissions, it was said that a discretion was conferred on the trial judge by reason of the Ministerial Directions stipulating an identical requirement to sub-s (8) and the worker having acted on the assumption that the Authority complied with these Directions. The Authority submitted in their further written submissions that the prohibition in sub-s (11) was subject to an overriding discretion that derived from the inherent jurisdiction in the Court to ensure a fair trial of the proceeding. The following example was given of where it was said that such a discretion should operate. A party calls a witness from whom the other party has a signed statement which it was prohibited from using by reason of sub-s (11). The witness gives an account completely contrary to the statement. It was submitted on behalf of the Authority that it would be manifestly unfair to prohibit the second party from then cross-examining upon and tendering the statement, as for example, a prior inconsistent statement.
If sub-s (11) and the Ministerial Directions do not apply, the submission of the worker that a discretion resides in the trial judge to refuse to admit relevant evidence cannot be sustained. No authority was cited or principle identified which could support the existence of a discretion to exclude this relevant evidence. Principles applicable to a failure to give discovery are of no assistance to the worker. First, the Act does not require a party to provide statements by potential witnesses of the evidence they could give in lieu of them giving viva voce evidence in chief at the trial.[56] Second, Mrs Hughes’ statement was privileged and would not have been discoverable, even if discovery had been sought by the worker. Third, a failure to discover may be remedied by an adjournment or costs but not by precluding the defaulting party from calling relevant evidence.
[56]Court Rules may so provide in leave applications.
The Authority’s submission that a trial judge had an overriding discretion to admit evidence notwithstanding the existence of a statutory prohibition against its admissibility, is equally untenable. As the prohibition did not apply to the Authority in the present proceedings and would not in any event preclude the calling of viva voce evidence it is unnecessary to further consider this question.
Counsel for the worker included in their further written submission dealing with the question of discretion, an argument based on the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’). It was submitted that any discretion to admit into evidence ‘other material’ not included in the Authority’s advice should only be allowed in exceptional circumstances because, to do otherwise, would too readily contravene s 24(1) of the Charter and the right of a party to a civil proceeding to have the proceeding ‘decided by a competent, independent and impartial court or tribunal after a fair and public hearing’. This argument had not been raised in the worker’s previous written or oral submissions nor was it foreshadowed. The leave granted to the parties to file a further written submission was confined to the question whether a discretion to refuse such evidence existed. It would be quite unfair to allow this argument after the completion of oral submissions. Accordingly, we say nothing about the merits of this late submission.
The Authority was not subject to any obligation of disclosure in proceedings commenced pursuant to s 134AB(16)(a) of the Act. Section 134AB(11) did not in any event render her viva voce evidence inadmissible. The Authority was entitled to call Mrs Hughes as a witness. The trial judge had no discretion to prevent it from doing so.
The remaining grounds of appeal concerned the learned trial judge’s directions to the jury as to the inferences that could be drawn from the fact that the Authority agreed to and made ongoing payments of compensation to the worker. The argument was only faintly pressed by counsel for the worker.
In our view, having regard to the content of the closing address by counsel for the worker and what was said by his Honour in his initial charge to the jury and in the redirection on this question, the jury would have clearly understood what inferences adverse to the Authority could be drawn from the Authority’s conduct bearing upon the happening of the incident, the injury suffered by the worker in the course of her employment and her incapacity for employment.[57] As counsel for the Authority pointed out, the payments were made on the basis of the worker’s claim form which had specified that the accident occurred on a different date to that relied on at the hearing. There is, in our view, no substance in this ground.
[57]See Ansett Australia Ltd v Taylor [2006] VSCA 171, [40] (Ashley JA, with whom Maxwell P and Bongiorno AJA agreed).
Accordingly, we consider that the appeal should be dismissed.
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