Jamieson v Santa Teresa Housing Association Inc

[1994] HCATrans 450

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Darwin No D2 of 1994

B e t w e e n -

, DAVID JAMIESON

Applicant

and

SANTA TERESA HOUSING

ASSOCIATION INC

Respondent

Application for special leave

to appeal

MASON CJ

TOOHEY J

McHUGH J

Jamieson 1 25/8/94

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 25 AUGUST 1994, AT 3.51 PM

Copyright in the High Court of Australia

MR M.D.A. MAURICE, OC: If it please the Court, I appear

with my learned friend, MR I.D. NOSWORTHY, for the

applicant. (instructed by Ward Keller)

MR D.J. BLEBY, OC:  May it please the Court, I appear with

my learned friend, MR o.w. DOWNS, for the

respondent. (instructed by Cridlands)

MASON CJ:	Mr Maurice.
MR MAURICE:	Your Honours, this application raises a short

point but it is of some importance to our real
client, the Territory Insurance Office. As well,

the approach of the Court of Appeal to questions of

statutory interpretation raises a matter of general

principle which shortly stated is this: the

readiness with which courts should find that one

State or Territory enactment impliedly repeals

another.

The Territory Insurance Office administers a

motor accidents compensation scheme. The scheme is

funded by compensation contributions collected by

the Registrar of Motor Vehicles. Essential
features of the scheme are that it does not depend

upon proof of fault, it provides finite or capped

benefits, and common law remedies for

Northern Territory residents have now been completely phased out. Northern Territory

residents, broadly speaking, are persons who have

resided continuously in the Northern Territory for

three months or more, or who enter the Territory

with the intention of residing there for that
period.

The rights of non-residents are fully

protected, and in that regard I refer Your Honours
to section 6 of the Motor Accidents

(Compensation) Act, which is reproduced at page 4

of our set of authorities. Broadly speaking,	subsection (1) provides for a statutory indemnity	to owners and drivers of Territory motor vehicles
in respect of their liability to non-residents for
accidents, whether they occur inside or outside the
Territory.

Subsection (2) of section 6, one of the

important provisions in this application, is a

special provision which, in effect, says that the

burden of loss should not fall on the scheme fund
if there is another avenue of recourse open. As is

stated in the statement accompanying the

application, page 45 of the application book, there

are about 500 claims made each year on the fund, of

which approximately one-third is made by

non-residents. That appears at line 15. In other

Jamieson 2 25/8/94

words, there are about 160-odd common law claims

made on the fund every year.

TOOHEY J: Although you are using the expression

"non-residents", Mr Maurice, does that expression

appear in section 6 or is it really concerned with

non-Territory motor vehicles?

MR MAURICE:  Section 6 is concerned with providing an

indemnity, Your Honour, to the owners and drivers

of motor vehicles. For the most part,

paragraph (a) is perhaps of relatively little

practical significance. It is paragraph (b) which

is the really significant one. That provides an

indemnity where the owner or driver of a Territory

motor vehicle is involved in an accident, in

respect of which a non-resident - would turn out to

be a non-resident - - -

TOOHEY J: In practical terms I can see that, but the

statute itself is couched in terms of "vehicle"

rather than "resident owner", is it?

MR MAURICE: That is so, Your Honour. Perhaps I should

refer you to section 5. That abrogates the common

law rights of Territory residents, but it leaves

intact the rights of non-residents. Of course it

is hardly surprising - that is a defined concept -

given the circumstances of the Northern Territory,
that there should be about 160-odd claims out of
500 made by non-residents every year, given its
dependence on tourism and work-related visits by

mining people and defence personnel and others.

So that in relation to those 160 common law

claims, the only other condition which needs to

exist to give rise to the potential for the problem

which occurred in this case to recur is that the
driver of the offending vehicle be driving in the

course of his employment. Of course that need not

happen in the Northern Territory. That can occur

outside the Northern Territory. There was, for

example, a case in 1992 when a Territory prime

mover was involved in a collision with a bus in New

South Wales and 47 bus passengers were injured.

The effect of the Court of Appeal's decision

is to throw the burden of loss, arising out of
these work-induced accidents, on the scheme fund;

that is, in the event that the plaintiff sues the

employee driver. That, to some extent, flies in

the face of the policy underlying section 10

paragraph (b) of the Motor Accidents

(Compensation) Act. We have not reproduced that,

Your Honours, but it says where you have an

entitlement to benefits under the Work Health Act

Jamieson 25/8/94

or formerly the Workers Compensation Act, you are

not entitled to benefits under this Act.

If I could then take Your Honours back to section 6, reproduced at page 4. Subsection (1)

commences, "Subject to sub-section (2)" and, as I have pointed out, subsection (2) says:

The office is not bound to indemnify a person

under sub-section (1) where that person is

already indemnified under any contract of
insurance or under the law applicable in the

place where the accident occurred.

Could I then take Your Honours to the section

which really gives rise to the problem. This is a

later enactment, and it is section 22A of the

Law Reform (Miscellaneous Provisions) Act. That is

reproduced at page 15 in our book of authorities,

and it is to be read in three parts.

Subsection (1) paragraph (a) in effect repeals the law as recognized in Lister v Romford Ice by taking

away from an employer the right to claim an

indemnity from his employee, either for breach of

his contract of employment or under the

contribution legislation.

Paragraph (b), if we put aside the qualifier

with which it opens, gives to the employee a right

of indemnity against his employer, and

subsection (2) gives to the employer, where he is

proceeded against, a right of subrogation against

the employee's insurer, if he happens to have

insurance, or against any person who is

contractually bound to indemnify him.

I would make this observation here, that the only practical significance of subsection (l)(a)

when it was passed was really to prevent an

employer's insurer having recourse to the scheme

fund.	Lister v Romford Ice of course was a motor
vehicle accident case. It is a well-known fact

that employers did not sue employees unless they

happened to have insurance. It was only likely to

be the case in respect of motor vehicle accidents

where there was compulsory insurance lying behind

the employee. So the practical effect, and this is

recognized in our learned friend's submissions, of

section 22(l)(a), at least in the Territory, was to

deprive an employer's insurer of recourse against

the scheme fund.

So that we have a situation where there

appears to be conflict between two provisions:

section 6(2) saying that you cannot get indemnity

from the scheme if you are "already indemnified";

and section 22A(l)(b) saying that you cannot get

Jamieson 4 25/8/94

indemnity from your employer if you are otherwise

entitled to indemnity.

Now, that grid lock can only be resolved in

one of three ways, and this is the principle of

interpretation that is involved here: by the

construction approach, taken by Justice Mildren; by

determining that 22(l)(b) works a pro tanto repeal
of section 6(2) of the Motor Accidents

(Compensation) Act, that is the approach favoured

by the Court of Appeal; and the third possibility

is by the application of the maxim, generalia
specialibus non derogant, which was

Justice Mildren's second option.

We say the construction approach is clearly

the correct one, and we say this: that if it can

be avoided, statutes of the same Parliament ought

not to be read so as to collide with one another,

and we have given Your Honours two authorities of

this Court, Butler v Attorney-General of Victoria

and Goodwin v Phillips as authority for that

proposition.	I will not take Your Honours to
that.	We have referred to pages in Pearce v Geddes

on the point as well, but those passages are

familiar.

Justice Mildren presents a scholarly analysis

of the history of section 22A and he shows how it
can be read comfortably so as not to conflict with
section 6(2) of the Motor Accidents

(Compensation) Act. Perhaps his main point is that

the alternative construction leaves the

determination of who is to bear the loss to the

plaintiff. At page 19 of the application book,

commencing at line 7, he says it all:

It could not have been the intention of

Parliament to have repealed the right of the

employer's indemnity insurer to make a full

recovery against the Office in these

circumstances based on the principle of

Lister's case, and at the same time to have

replaced that with a system which left it to the plaintiff to decide where the loss fell.

In fact, this Court in McGrath v Fairfield

Council, reproduced in our book of authorities at page 29, considered the then New South Wales

equivalent of section 22A(l)(a) and, indeed, by the application of the "mischief rule" came to the view

that the word "indemnity" in the New South Wales

provision covered claims for contribution under the

New South Wales contribution legislation.

The New South Wales legislation has since been

repealed. At the time this Court considered it in

Jamieson 5 25/8/94

McGrath it contained no equivalent of

22A(l)(b). It was pointed out to the Court in that

case by Mr McAlary for the respondent that absent

of paragraph (b) a pro tanto repeal of the

contribution legislation would mean the outcome

depended on the whim of a plaintiff, and the court

recognized this saying, in effect, that the only

mischief to which the legislation was directed was

that which it had earlier identified. To identify
that mischief I take Your Honours to the report at
the top of page 677:

That perceived injustice arose from the conviction that the employer should shoulder the responsibility for damages for which he

becomes liable in consequence of the "fault"

of his employee occurring as an incident of

the latter's employment when in most instances
the employer insures himself against that

liability -

and the Court further down the page talks about the

policy underlying this legislation, namely that if

the master gets the benefit of the employees'

labour he should pick up the tab for the losses

associated with it.

The New South Wales legislature responded to

that decision by repealing the legislation and
replacing it with the Employees Liability Act 1991.

It contains an equivalent of the Northern Territory

section 22A(l)(b). Now, paragraph (b) of the

Northern Territory legislation was introduced

precisely because, without it, the determination of

who should bear the loss would depend upon the whim

of the plaintiff; that is, the mischief to which

paragraph (b) is directed. If the plaintiff sued

the employer alone, paragraph (a) dictated the

outcome. But if the plaintiff should sue the

employee the latter would bear the loss, thus

defeating the policy which the Court in McGrath

identified as underlying paragraph (a). Now, if I

could take Your Honours to the purpose for which

22(a)(2) was introduced.

TOOHEY J: What if the plaintiff sued them both?

MR MAURICE:  If he sues them both it then depends on against

whom he chooses to enforce his judgment. If he

chooses to enforce his judgment against the

employer the employer's insurer pays. If he

chooses to enforce it against the employee the

scheme fund pays for it. That is the outcome in

this case. It depends upon the whim of the

plaintiff, as he got judgment against both and

indemnity was not allowed from the employee to the

Jamieson 25/8/94

employer, so it depends upon whom he chooses to

enforce the judgment.

TOOHEY J: But the indemnity that section 6 speaks of is an

indemnity in relation to liability, is it not?

MR MAURICE: Yes, Your Honour.

TOOHEY J:  As distinct from - perhaps "indemnity" is not the

right word in the other context, namely, you say it

depends against whom the judgment is sought to be

enforced.

MR MAURICE:	Yes.
TOOHEY J:	But how do you tie the actual enforcement of the

judgment into section 6?

MR MAURICE:  When you reach a situation where, as in this

case, the plaintiff has got a judgment against the

employer and the employee for the same damage, if

he chooses to enforce it against the employer alone

then the employer looks to his insurer for

indemnity. He has no right to look to the TIO for indemnity because section 6(2) says that he is not entitled to if he is already indemnified from some

other source. If he chooses to enforce it against

the employee the employee is denied right of

does not operate and he is entitled to indemnity

indemnity against his employer by virtue of the

from the scheme fund under section 6(1).

The main point here is - if I could finish

this off, Your Honour - subsection (2) was

introduced to ameliorate the effects of

paragraph (a) in cases where the employer is

entitled to a contractual indemnity. The purpose

of introducing paragraph (b) - this is critical to

our argument - without the qualifier, was to remove

from the plaintiff the power to determine who

should bear the loss; completely the opposite

result reached by the Court of Appeal.

The purpose of the paragraph (b) qualifier was

to accommodate subsection (2) so as to produce

consistent results. Without the qualifier

paragraph (b) would take away what subsection (2)

appeared to give. The Court of Appeal approach,

encapulated in three sentences in the
Chief Justice's judgment, application book 30,

cannot be right. What they have said is that the

opening words of 22A(l), notwithstanding any other

law, elevated the subordinate clause with which

paragraph (b) opens to a status whereby it works a

pro tanto repeal of section 6(2) of the

Motor Accident (Compensation) Act. Yet the purpose

Jamieson 25/8/94

of those words was well identified by

Justice Mildren at page 13 point 9 of the

application book, where he says:

Clearly, the intent of s 22A of the Act is to preclude the employer from claiming any

indemnity from the employee either on the

basis of a breach of a contractual term, or on

the basis of a claim for contribution under

s 12(4) ands 13 of the Law Reform Act -

and he refers to McGrath's case, and hence the

reference in 22A(l) to "notwithstanding any other

law enforced in the Territory."

As far as the extension of time goes,

Your Honours, that matter is really dealt with

comprehensively in our written outline and I cannot

add to it. It was a solicitor's mistake. The

client was not at fault, about the effect of the

rule concerning the non-running of time during the

long vacation. Those are our submissions.

MASON CJ: What do you say about this, Mr Bleby?

MR BLEBY:	If the Court pleases I will just make three short points. First, the application for special leave
is a long way out of time. As far as we are aware
there is no application to extend the time, but at the same time we recognize that there is no
prejudice to our client if the time were extended. But we make the point that time limits are there to
be observed.

The second thing we say about the application

itself is that we do not contend, as is suggested

in my friend's outline, that there is an

inconsistency between the two enactments. The

applicant arrives at that position, with respect,

by reading words into section 22A which are not

there by qualifying the unqualified word

"indemnity" with the phrase "under a policy of

insurance or contract of indemnity" which are not

there. The section just talks about indemnity.

we say that the two Acts can be read together

quite harmoniously, because of the use of the word

"otherwise" in the Law Reform Act in the
paragraph (b), "an indemnity otherwise than that

provided by that section". In other words, where

the employee has an indemnity provided by section 6

of the Motor Accident (Compensation) Act, the word

"otherwise" says "he is not entitled to an

indemnity from his employer", and it is as simple

as that.

Jamieson 25/8/94

There is a secondary argument which is

the Court of Appeal and that is relating to the	referred to by only one of the judges, I think, in
words "a place where the accident occurred" in
section 6. The argument there is that those words
could only ever have referred in the past, prior to
section 22A being enacted, to a place outside the
Territory and merely to change the meaning of those
words by a side wind, by enacting section 22A, can
hardly have been intended.

The third point we would make, Your Honours,

is this: that whilst we say, with respect, that
the point is quite simple, it was correctly

decided, or at least there is insufficient doubt

attending the decision on the part of the Court of

Appeal. In addition to that, the point is unlikely

to arise very often, if at all, by virtue of

changes of legislation which have occurred since

this accident happened. Indeed, if this accident

had happened three days later we would not be here

at all because at the time of the accident the

plaintiff was entitled to damages, or to claim

damages at common law for pain and suffering and

loss of amenities of life. Three days later that

in Motor
right was repealed section 5 of the question can never arise in respect of a resident

of the Territory. There is just no common law

actions now at all.

We make the point in paragraph 4.7 of our

submission and 4.8 of the outline that the question

could only now arise where, firstly, there is an

is registered motor vehicle; where the unsuccessful

injured plaintiff who not a resident of the

defendant was the owner or in control of the motor

vehicle, and where the unsuccessful defendant was

the employer of the plaintiff who has got to be a

non-Territory resident.

Now, it is our submission that the prospect of

those facts coming together are so remote that it
may arise once or twice. But it certainly has
taken a lot of the sting out of the application
where, at the time of this accident and prior to it

of course, there were claims available, at least for damages for pain and suffering, to Territory residents and the prospect of the point arising

perhaps was a little greater.

So for those reasons, in our respectful

submission, and the others which we put in our

outline, and without elaborating on them - they

are in Part IV of the outline - in our submission,

there is no special reason advanced for leave to

Jamieson 25/8/94

appeal. The matter is certainly not of any

significant importance, even within the Territory

now it would seem. Those are our submissions,

unless there is anything else the Court wishes to

hear me on.

MASON CJ: Yes, thank you, Mr Bleby. Do you want to say

anything in reply, Mr Maurice?

MR MAURICE:  Two points, Your Honour: it is just not right

to say that this problem cannot arise unless the

plaintiff was employed by the defendant. It can

arise wherever we have a common law claim, which we

can only have in the case of a non-resident victim
of a motor vehicle accident, and the only other

condition that needs to be satisfied before it

arises is that the offending driver was driving in

the course of his employment.

As far as the alternative argument is

concerned that section 6(2) does not include the

Northern Territory, one refers to the law of the

place where the accident occurred, I refer

Your Honours to application book page 15 where

Justice Mildren deals with that comprehensively.

At page 15 line 10, he says:

In the first place such a construction of

s 6(2) involves reading words into s 6(2)

which are not there; secondly, it is not

necessary to do so to give effect to the

literal meaning of the words chosen by the

legislature. To read the words of s 6(2) to

refer to the laws of any place, including the

Northern Territory, if that is the place where

the accident occurred, does not, in my

opinion, lead to any absurdity or

inconvenience. Prima facie it seems to me

that the words of s 6(2) are apt to cover a

person who has a right to statutory indemnity

under another law of the Northern Territory.

If I might just draw the Court's attention to

the fact too, that section 27C of the

South Australian Wrongs Act is in the same terms as

22A of the Northern Territory legislation.

MASON CJ: The Court is not persuaded that the proposed

appeal would have sufficient prospects of success,

and that being so the Court refuses the application

for an extension of time.

MR MAURICE: If the Court pleases.

MR BLEBY:	I ask for an order for costs.
MASON CJ:	You do not oppose that, Mr Maurice?

Jamieson 10 25/8/94

MR BLEBY:	No, Your Honours.
MASON CJ:	The application is refused with costs.

AT 4.20 PM THE MATTER WAS ADJOURNED SINE DIE

Jamieson 11 25/8/94