Jennings Constructions v Workcover Corporation Ltd

[1999] HCATrans 251

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A33 of 1998

B e t w e e n -

JENNINGS CONSTRUCTIONS LTD

Applicant

and

WORKCOVER CORPORATION LTD

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 12 AUGUST 1999, AT 2.43 PM

Copyright in the High Court of Australia

MR D.M. QUICK, QC:   May it please the Court, I appear with my learned friend, MR B.F. BEAZLEY, for the applicant.  (instructed by Lawson Downs)

MR R.C. WHITE, QC:   May it please the Court, I appear with my learned friend, MR T.L. STANLEY, for the respondent.  (instructed by Rowell Forrest & Co)

GLEESON CJ:   Yes, Mr Quick.

MR QUICK:   If the Court pleases, this application concerns a factual situation which is remarkably uncomplicated.  There is no dispute about the facts, nor can there be any because they are, by and large, resolved by and result from a judgment of the court.

Very briefly, those facts are as follows.  Jennings Constructions was the principal contractor on a building site.  It subcontracted in July 1987 ceiling work to another company called Ceilfix.  Ceilfix employed a man called Valkonen who, on 27 April 1988, fell and suffered serious injuries and subsequently obtained a judgment for $6 million in connection with those injuries, four parties being held responsible for the injuries, those parties being Jennings, the principal contractor; Scaffold Connection, the party that had supplied scaffolding; Mr Valkonen’s employer, Ceilfix and Mr Valkonen himself.

Jennings obtained a judgment against Ceilfix for indemnity in respect of its liability arising from the subcontract arrangements between Jennings and Ceilfix. The question at issue is whether or not the present respondent, the Workcover Corporation, is liable to indemnify Ceilfix pursuant to section 105 of the South Australian Workers Rehabilitation and Compensation Act 1986 to 1988.

The interpretation of section 105 involves a matter equivalent to or analogous to the interpretation of an indemnity provision or the insuring clause in a policy of insurance but it just so happens that instead of being in a policy of insurance it is in a statute. The statute itself is far from unique in the sense that there are a number of provisions of this kind, one of which we have referred to in the written submissions and in a book of papers prepared for the Court includes the Victorian Workcover legislation which is along the same lines. The statute provides an insuring provision itself.

GLEESON CJ:   Apart from a decision of Mr Justice Yeldham in New South Wales is there any other authority in another State concerning the issue that arises here?

MR QUICK:   Not the issue of construction of section 105. No, there is not, your Honour.

GLEESON CJ:   Is it the case that the decision of Mr Justice Yeldham that has been referred to is to the same effect as the decision of the South Australian courts?

MR QUICK:   No.  It is not.  Your Honour, the special leave application is not so much the matter of interpretation of this particular section.  It is the general issues of statutory interpretation, the general principles of statutory interpretation which ‑ ‑ ‑

GUMMOW J:   They are well settled.

MR QUICK:   In some respects, although, for example, in Austrust v Astley the court referred to that category of cases where the remedy which is provided seems to be wider than the mischief that might have been contemplated. So far as we are aware there are no cases that specifically deal with that situation and that is the situation, at least so far as the Full Court found, here. We would submit that that is not necessarily the case, that what is involved here involves a number of statutory interpretation canons and principles of construction, more so than the construction of section 105 itself.

GUMMOW J:   Was there any difference within the various judgments in the Full Court, because there were five judgments?

MR QUICK:   Your Honour, Justices Doyle, Prior and Nyland relied on the reasoning expressed by Justice Doyle.  The Chief Justice in his reasons went on a process of reasoning that was first to say, “These are the plain and ordinary meanings of the words used in the statute”, then to look at the purpose of the statute gained from other provisions, then to refer specifically to section 22 of the Acts Interpretation Act of South Australia and he then came to a conclusion which was to the effect of reading down the width of the provisions of indemnity provided by the section by effectively reading words into the section.

Justice Williams went through basically the same approach.  He also found that the plain and ordinary meaning was wide enough to cover the situation here.  His Honour did not refer to section 22 of the Acts Interpretation Act but his Honour then read the words down on the basis of reasonableness rather than on the basis of context per se, the reasonableness arising from the so‑called drain on the fund that would occur if there was a liability of this kind.  Justice Olsson, the fifth member of the court, proceeded down a different path but from the same starting point.

GLEESON CJ:   He had been a party to the earlier decision.

MR QUICK:   He had been, your Honour.

GLEESON CJ:   And he followed the reasoning in the earlier decision.  Is that right?

MR QUICK:   Not quite, your Honour.  He found on this occasion that the words which were used were wide enough in their plain and ordinary meaning to cover the indemnity which had been sought which was a departure from the earlier reasoning, but otherwise he held to the reasoning which was in the earlier case, including the reasoning in connection with the words “arising out of” which was the main ‑ ‑ ‑

GLEESON CJ:   It comes to this.  Everybody has agreed, have they, that on a literal interpretation of the statute, the words are wide enough to cover the situation for which you contend but, for one reason or another, all the South Australian judges who have looked at this, and so far there have been seven of them, have agreed that on its true construction the statute does not cover the situation.

MR QUICK:   That is so, your Honour, and we would submit that they have made fundamental errors, with respect, in the way in which they have adopted that when they have come to that position.  They have applied section 22 when it has no application.  They have looked for the purpose of the legislation but ignoring the purpose of the very provision which is under discussion.

Let me expand on that. The purpose of the legislation is to provide workers with benefits but it was also to provide employers with benefits. It provided the employers with benefits in diminishing the scope of their liability and also providing them with a monopoly or a uniform system of insurance. They did not have to go to the market any more for insurance. They could go to this insurer which had to provide it. That was a purpose and the terms of the cover, the only terms of the cover are in section 105. Now, people on the basis of that could say, “Now we’re insured against any liability arising in these circumstances”.

One of the purposes of the Act was the benefit to employers.  When it came to interpreting that provision the court looked at the benefit which was outside of the particular provision.  They looked at the benefit to workers which, we would submit, had nothing really to do with it at all.

GLEESON CJ:   Can you tell me this?  Are insurance arrangements of this kind subject to reinsurance?

MR QUICK:   There is nothing specific in the Act about it, your Honour.  In the regulations there is a reference to an employer possibly having another source of insurance and contribution.

GLEESON CJ:   No.  I am talking about the insurer.  What I am interested in is how the insurer knows the extent of its potential liability.  I think I can understand how the insurer could assess the extent of its potential common law liability by reference to number of employees covered and so forth, but how would it ever know the possible extent of liabilities undertaken by contract and would it seek to reinsure those liabilities?

MR QUICK:   First of all, your Honour, there are some limitations in the section itself. Section 105 refers only to the liability of an employer to its employees. That is the first limitation and secondly, it followed that it has to be in respect of personal injury because it has to relate to compensable disability under the Act. So that the one limitation it knows is it knows how many employees are there, it knows that it is a liability for personal injury and therefore it knows the limitations according to the common law principles of assessment of damages. That is how it knows the liability. But as far as reinsurance is concerned, as far as I am aware, there is nothing in the Act about that and, in fact, Workcover may reinsure or it may simply have the fund and invest the fund and manage it itself and seek not to be insured.

Whilst I am on that, I come back to the question that your Honour Justice Gummow raised about the differences between the judges of the Full Court. The majority of the court referred to, and so does Justice Williams and so does Justice Olsson, but in slightly different terms, to the drain on the insurance fund. It seemed to be a matter that featured significantly in their thinking but there are a number of ways in which Workcover could limit that draining effect. First, the provisions of section 105 contain a provision which enables the legislature to limit the scope of the insurance coverage and to lay down conditions on which it is to be provided. It is subject to such terms and conditions as are prescribed by regulation. That is the first thing.

The second thing is that Workcover does not receive its funds just from levies. It also receives them from penalties which are extracted from employers that have too many liabilities but as well, under section 54(7), there is a potential range of liability out there in third parties which Workcover, as the insurer, is entitled to extract compensation from those sources so that, for example, if an employee is injured in a building due to an occupier’s failure to keep the building safe, Workcover pays compensation but it can also extract from the occupier of the building funds equivalent to its liability under the Act, that is Workcover’s liability under the Act, at common law under section 54(7).

We submit that the principles of statutory interpretation that have not been properly applied in the decisions of the Full Court are as follows.  First of all, there is no doubt that what the Full Court did was to read words of limitation into the plain and ordinary meaning of the statute.  Now, the circumstances in which words of limitation can be read into a statute are particularly limited.  They are referred to in the speech of Lord Diplock in Wentworth v Jones (1980) AC 73 at 105 to 106, a case to which we have referred in the written application. That is important enough to actually refer the Court to at this stage. If I can just take the Court to it. In the book of authorities that have been provided it is behind the fourth blue divider. It is about a fifth of the way into the book. I am sorry the pages have not been paginated. If I can read from page 105, Lord Diplock had this to say:

My Lords, I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. 

It is pretty definite that.

But in doing so the task on which a court of justice is engaged remains one of construction; even where this involves reading into the Act words which are not expressly included in it.  Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850 provides an instance of this; but in that case the three conditions that must be fulfilled in order to justify this course were satisfied. First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy –

just pausing there, that cannot be done here because one has to look at section 105 itself in order to determine that mischief –

secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved –

That also is absent here –

thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law.  Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed.  Such an attempt crosses the boundary between construction and legislation.

That is precisely what we would say has happened here.

GUMMOW J:   I know what Lord Diplock said but there are plenty of cases in this Court on statutory interpretation.  One of them is a case called K & S Freighters v Gordon & Gotch.  Does not Sir Anthony Mason say in that that you always look firstly to the subject, scope and purpose of an Act even if you are construing words that look plain?

MR QUICK:   And, your Honour, we would say, if one adopts that approach one looks at including looking at section 105 and one sees that one of the purposes is to provide some insurance for an employer. The only question is how far is that insurance? We would say how is the Court to determine how far that insurance is to go and the answer to that is that one applies the normal canons of constructions, including that emerging from Bull’s Case.

GUMMOW J:   Chief Justice Mason also had views about this expression “canons of construction” too.  He used to get quite angry when it was uttered.

MR QUICK:   I hope I am not angering the present Court.

GUMMOW J:   Because it just diverts attention from the task.

MR QUICK:   Here there is a tension between giving words which are plainly remedial the fullest beneficial meaning that they can have in accordance with the doctrine emerging from Bull’s Case but, on the other hand, looking at the purpose and scope of the enactment.

GUMMOW J:   The reason why I mentioned those matters to you is that that is what the judges, I think, had at the back of their minds when they talk about draining the fund.

MR QUICK:   It is.

GUMMOW J:   As a step in their process of interpretation.

MR QUICK:   I agree. That is the case, your Honour, but we would submit (a) that they were wrong in fact, because they did not take into account other sources of limitation of the fund. It is only limited to employees and it can be surrounded by regulation and there is a capacity to recover fines and there is a capacity to recover from third parties. It is nowhere near as bad as they thought. But quite apart from that, the court never looked at section 105 itself and said what is the purpose of this provision. How can we say that the purpose is limited to providing the fund which pays for the compensation when what was done was to remove the need for private insurance in respect of liabilities under the Act and to set up some additional source of insurance? Why should it not go the whole way than just part the way?

We would submit that it is not just a question of that Act.  There is a very fundamental process of statutory interpretation involved here.  Can one really use the purposive approach when the section under consideration is, itself, to be considered for the purpose of determining the purpose of the legislation.  In this case that cannot be done and it is a major provision.  It is a major provision because it provides for the employer a particular benefit which is not to be found elsewhere in the Act.

GUMMOW J:   I do not think there is a purposive construction or a literal construction.  I just think there is a construction.  The notion that you go in to one door or another door first, seems to me, beside the point.  I know everyone talks about purposive construction ‑ ‑ ‑

MR QUICK:   All the more reason why we would submit that this Court ought to deal with the matter, to have a look at the way in which these matters are to be determined and to determine whether or not the Full Court has correctly dealt with it.

There is one other thing I should draw attention to and that is that the court has actually approach section 22 – I know it is only the State statute but it has widespread applications within this State and there are equivalent pieces of legislation elsewhere.  It approaches section 22 on the basis that you apply it to determine what is the better or what is the best interpretation consistent with the legislative intent expressed as a whole through the Act but the Act does not apply in those terms at all.

If you look at its terms, section 22 says that where there is “one construction” which favours the “object of the Act” and one which is against the object of the Act you prefer the one that favours it.             Here, both

constructions favour purposes of the Act.  There was no occasion to apply section 22 at all and, to do so, as the majority have done was, in our respectful submission, an error.

GUMMOW J:   Where do we find the text of section 22?

MR QUICK:   That is within the bundle of legislation at page 49, your Honour.  It is a separate book.

GUMMOW J:   Yes, thank you.

MR QUICK:  

Subject to subsection (2), where a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object…..shall be preferred to a construction that would not promote -

Now, what the court has done here is to say, “Let’s look at the way in which this legislation promotes the object of the Act.”  It does it best by reading it this way.  Section 22(1) does not apply to that circumstance at all.  It is only if one would hinder and the other promote the objects of the Act.  Those are our submissions, if the Court pleases.

GLEESON CJ:   Thank you, Mr Quick.  Yes, Mr White.

MR WHITE:   If the Court pleases, there are a number of reasons, in our submission, why special leave should be refused.  Can I just give your Honours a quick outline of those and then come back to address some of them in more detail.

The first is that the decision of the Full Court is correct or, at least, not attended with sufficient doubt and I do wish to return to that. The second is that the South Australian provision in section 105 which, we say, has to be read also with the other provisions of the Act, in particular, section 54, is materially different from the interstate counterparts so that it would not be a case of this Court pronouncing on a provision that appears generally across Australia. Thirdly, there is unanimity of result, if not of reasons, within the South Australian Supreme Court. The matter has now been heard by two separately constituted Full Courts, one judge only in common, as your Honour the Chief Justice has noted, and each has come to the same result, albeit by different reasoning.

Next, we say that the interests of justice do not require the grant of leave in this case.  In this case the Court is concerned with a contract entitling Jennings to indemnity which was entered into on 1 July 1987.  At that time there was no doubt that Ceilfix, the employer, was not entitled to indemnity from Workcover in respect of the contractual liability to Jennings.

GUMMOW J:   It was a transitional argument, was it not, a transitional provision argument?

MR WHITE:   What the Full Court has held, your Honour, is that the amendment to section 105 in 1988 applies retrospectively so that it does pick up a liability in respect of this incident. Our point, however, is that, at the time Jennings entered into its contract with Ceilfix, it could not have done so on an expectation that Ceilfix would have an entitlement to indemnity from Workcover and so there is no injustice in the circumstances of this case. As it were, Jennings here is seeking to take advantage of it.

GUMMOW J:   If special leave were granted would there be a notice of contention on the transitional provision point?

MR WHITE:   Not on that point, your Honour.  The last point we wish to make is that the issues of statutory construction which are raised as justifying special leave really disappear.  They involve principles of statutory interpretation, in our submission, which are well understood and well established.  What the applicant really wishes to agitate are issues of application of those principles as opposed to the development of principle.

GLEESON CJ:   Can you come back to the matter of the extent to which this statutory provision has counterparts in other jurisdictions in Australia?

MR WHITE:   Yes. May I just come to that in a few minutes, your Honour. Can I just quickly say something about the correctness of the decision. This is an Act which the Court can see has both a section which removes liability, section 54, and a section which grants insurance in respect of a liability. As it happens, the Act uses very much the same language, we say materially the same language in that section, section 54, which removes the liability as it does in that section which deals with the grant of indemnity. It uses this expression in section 54(1):

Subject to subsection (2), no liability attaches to an employer in respect of a compensable disability arising from employment by that employer –

and there are two provisos, “non‑economic loss or solatium” and a “liability under this Act” itself. We emphasise those words “liability in respect of a compensable disability arising from employment by that employer”. Those same words appear in section 105.

Our point is this. If those words in section 105 are broad enough to encompass the sort of liability which the applicant agitates for, then those same words in section 54 prevent that liability attaching to the employer in any event. The applicant cannot have it both ways. Either the sort of liability that it talks about is precluded by section 54 and, therefore, not within section 105, or it escapes the prohibition on liability attaching in section 54 because it is not included in the words and, therefore, it is not included in those same words when used in section 105.

We say that, with respect, is an insurmountable problem for the applicant and it involves application of that other principle of statutory construction which is that one assumes that Parliament intended to use the same words with the same meaning and the same effect when used more than once in the same Act.

That then gives rise to the question why in 1988 did Parliament amend section 105 so as to apparently expand the grant of indemnity and we point to this work for section 105 to do, namely to provide indemnity in respect of those liabilities which could not be constitutionally precluded by the South Australian Parliament, liabilities incurred interstate, liabilities that might arise pursuant to section 52 of the Trade Practices Act.  This Court will remember the attempt in the late 1980s to use section 52 of the Trade Practices Act as a means of providing a course of action for injured workers.

We point also to these facts.  The income of the compensation fund from which this indemnity would have to become is derived almost exclusively from levies imposed upon employers in this State.  Those levies are a percentage of the payroll paid by the employers.  There is a general relationship then one can see between the income of the fund and the principal liability which the fund has to meet which is payments of income  maintenance.  There is no relationship between that source of income and a liability of this kind.

Your Honour the Chief Justice has raised the question of the possibility of reinsurance.  The Act does not provide for any possibility of reinsurance and, indeed, if one looks at section 64(3) of the Act which speaks about how the fund can be “applied”, payments of premiums for reinsurance do not seem naturally to come within any of the particular categories.

Then there is the absence of any requirement for a proposal or notice to Workcover that a liability of this kind has been assumed by a particular employer so the possibility would exist of an employer becoming subject to a liability and then the fund becoming subject to a liability without any notice, without any proposal, without any proper payment of premium, without any commercial terms and without the ability of Workcover to make proper provision in its estimates.

The last point we point to is this.  In the case of Manser v Spry this Court said that a purpose of this Act was to provide for recoupment to the fund in those instances where a third party was also liable to the injured worker.  If Workcover instead became liable to indemnify these forms of contractual liability there would be a major impact on that ability to recoup moneys to the fund and this case provides the instance.  Instead of Workcover being able to recover from Jennings it would have to, in effect, provide the means by which Jennings was funded in respect of its liability so we point to each of those matters.

GUMMOW J:   What do you say about the interstate legislation?

MR WHITE:   Your Honour, it is impossible in the time available to do a review of all the interstate legislation.

GUMMOW J:   I hope so.

MR WHITE:   What we do say is that there are none which are in identical terms and there are none which are in materially the same terms.  Almost, not all, but almost all of the interstate provisions provide for an employer having to take out a policy of insurance with an approved insurer.  Victoria and New South Wales are examples.  I am corrected by my junior in respect of that.  Several of them require there to be a policy of insurance taken out.  That means, of course, that an insurer can impose commercial terms, impose terms with respect to notice, impose terms with respect to proper payment of premium and make proper provision for future liabilities.

Secondly, in each of Victoria and New South Wales the relevant provisions – I am reading now from clause 2 of the Victorian policy which appears at page 73 of my friend’s book – provides expressly that the policy excludes liabilities that are incurred pursuant to agreement and which would not otherwise arise.  There is a similar provision in respect of the New South Wales section, section 155 which is at page 52 of my friend’s book, so those expressly exclude this possibility anyway and so there would not be application there.

Furthermore, in the case of Victoria - your Honours will see this from page 71 of my friend’s book – the insurance policy must be “in the prescribed form”, that form to be fixed by regulation so again, there is a variable content according to the regulation which applies from time to time.

In New South Wales another variant is that the liability in respect of which insurance must be taken is a liability of the employer for injury, not a liability in respect of injury.  The Queensland provision which is at page 100 of my friend’s book, limits the liabilities which are the subject of insurance to ‑ ‑ ‑

GUMMOW J:   What of the provision that was construed in the New South Wales case?

MR WHITE:   It was the former, I think, section 18 of the New South Wales Compensation Act which has now been repealed, your Honour, and relevantly, that was in the same terms as section 155 of the 1987 New South Wales Act which, I think, is relevantly in the same terms as the counterpart provision in the 1998 New South Wales Compensation Act.

GUMMOW J:   But what about comparison with South Australia?

MR WHITE:   If your Honours will just bear with me a moment.

GLEESON CJ:   We are trying to seek information as to the extent to which this issue has an importance beyond South Australia.  By this issue, I mean the issue of the meaning of the relevant provision, not the wider issue of the principles of statutory construction to which Mr Quick has directed his argument.

MR WHITE:   Your Honour, section 18(1) of the New South Wales Act which was considered in Hutcherson’s Case – I do not think we have it in the book of documents which your Honours have, but it is in these terms:

Every employer shall obtain from an insurer licence under this Act to carry on business in this State.  A policy of insurance or indemnity conforming to this section for the full amount of his liability under this Act to workers employed by him, and for an amount of at least $100,000 –

that is now without limit –

in respect of his liability independently of the Act for any injury to any such person –

and then goes on to provide a penal provision.  So it is a liability independently of this Act “for any injury” as opposed to the present South Australian case which is a liability “in respect of a compensable disability”.  The New South Wales equivalent is more limited in that respect and it was in respect of that provision that his Honour Justice Yeldham held that liabilities which were purely contractual and not otherwise arising were not within the purview of the statutory policy that had been taken out.

Can I move then to the questions of statutory interpretation that my learned friend has raised.  We make the overall submission that the principles are well settled and have been discussed by this Court on several occasions.  It is not as though there is some new question which requires the attention of the Court. 

In my learned friend’s written outline he raises the question of the principle that remedial legislation should be given a beneficial construction.  With respect, we say that does not give rise to any special leave point, firstly, because there is no doubt about the principle.  If there is any doubt it is about its application.  But secondly, it is plain that the application of that principle can only apply once one has first determined what is the true purport and true effect of the section in question.

That follows from the passage in Bull’s Case in Justice Isaacs’ judgment, which my learned friend relies on, where he said “the true signification of the provision should not be strained or exceeded”, and it also follows from the judgment of this Court in Khoury v GIO.  That is at page 43 of our book of cases where this Court ‑ ‑ ‑

GUMMOW J:   Your point has to be really your first point actually.  When you go through the Act and work out how it operates, that helps explain what the relevant meaning is in this particular provision and whatever labels you put on that process - it helps people writing books, I suppose - but you say if one does that, that reaches a result consistent with that reached by the Full Court.

MR WHITE:   With respect, your Honour, we do urge that on the Court and that is why we put this point forward, that section 54 and section 105 need to be read together. Each of the justices who comprised the court in this case took that approach and saw that there was an interrelationship between the two and given that each uses the same expression, one in the negative, one in the affirmative, it is, in our respectful submission, obvious that they must be right in so doing.

Can I just round off what I was saying about this principle of beneficial construction, that is to the effect that it really begs the question involved and that is that one needs to determine, before one can apply that principle, what is the true meaning of the words used.  It is not to the point to rely upon a proposition, as the Chief Justice found, that the words were capable of having a certain meaning.  That does not mean to say that in the context of this Act they do have that meaning and what his Honour engaged in was a process of determining what was the meaning in fact of those words in the context of this legislation.

Can I turn then just quickly to section 22 of the South Australian Acts Interpretation Act.  On the one hand it might be said that the South Australian section 22 is different from its counterparts.  The words with which it is prefaced do not appear in any of the interstate counterparts.  Those words are “Where a provision of an Act is reasonably open to more than one construction”.  The Commonwealth section 15AA and the other interstate counterparts are prefaced with these words “In the interpretation of a provision of an Act”.  One then goes on to adopt the meaning which will promote the purpose of the Act as against one which will not.

Now, that means this in our respectful submission.  If that is a material difference from the interstate counterparts, then there is no point in granting special leave because what the Court will be deciding is something that will not be of general application.  On the other hand, if one ignores that and says that it is, in effect, the equivalent of the others, then the fact of the matter is that the interstate equivalents of section 22 have already been considered by this Court in the relatively recent past in Chugg v Pacific Dunlop – I will not give the Court the references unless the Court wants them, they are in the outlines at pages 261 and 262 – by the majority of the Court, in Mills v Meeking at 233 to 235 by Justice Dawson and in Saraswati by Justice McHugh at page 21.  There is no need, in our submission, for this Court to be granting leave in order to deal with the construction of a statutory interpretation provision such as section 22.

We also make this point in relation to section 22, that there are no conflicting decisions within South Australia about what section 22 means or how it is to be applied and, indeed, the applicant, in its outline in paragraph 32 accepts that the meaning of section 22 is clear.  Furthermore, we point to the fact that it is not as though the Full Court here relied upon section 22 in order to come to the conclusion it did.  Justices Williams and Olsson reached their conclusions without reference to section 22 at all.  The Chief Justice did refer to section 22 but in a way of confirming a decision already arrived at as opposed to it being an essential part of his reasoning and if special leave was granted we would expect that the Court would

resolve the issues of construction without having to have resort to section 22.  We say that, too, militates against the grant of special leave.

Can I just say quickly and finally that we contest the proposition that what the Full Court has done is to imply words into section 105. We say that it has not done that. What it has done is simply to construe what the expression “any liability” means in section 105 and without implying any words of limitation into that. If the Court pleases, those are our submissions.

GLEESON CJ:   Thank you.  Yes, Mr Quick.

MR QUICK:   If the Court pleases, the interstate position is not quite as my learned friend has represented. The position in Victoria, for example, appears at page 71 of the book of relevant legislation. The provisions of section 134 of the relevant employers’ Compensation Act in Victoria does not provide at all for a policy of insurance. It is in precisely the same structure as section 105 in that it is the Act which provides the insurance, not a policy. Section 134 reads:

There shall be deemed to be a contract of insurance in the prescribed form in respect of an employer’s liability at common law or otherwise…..in respect of an injury to a worker arising out of or in the course of, or due to the nature of, employment –

The contract which appears on page 73 is the policy under the Victorian transport legislation not under the accident compensation legislation.

GLEESON CJ:   What do you say as to the relationship between sections 105 and 54?

MR QUICK:   Your Honour, we would submit that the same words are not actually words that are used. If one looks at section 54 it limits the liability to “liability at common law for…..solatium”.

GLEESON CJ:   They are conveniently set out together on page 26 of the application book.

MR QUICK:   Thank you, your Honour. In section 54 there is “liability under this Act”. It is plainly not that but (b):

a liability at common law for non‑economic loss or solatium –

and those are not the words of section 105. Section 105 is in the unlimited terms which appears on page 29. It is:

any liability that may arise apart from this Act –

so it is clearly not ‑ ‑ ‑

GLEESON CJ:   Except the opening words of section 54 are “no liability attaches…..except”. That I understand to be part of the point of the comparison.

MR QUICK:   I understand that, your Honour, but section 54 cannot be said to be doing the same type of work as section 105. One is a limitation of liability, the other is a grant of insurance. The limitation of liability restricts the area in which the insurance can operate but the insurance operates beyond what is excluded by section 54.

GLEESON CJ:   As I understand it, the argument is that section 54 constitutes an important part of the statutory scheme against which section 105 needs to be understood.

MR QUICK:   I understand that to be the argument, your Honour. We would submit that there is no merit in that because it is only because section 54 leaves some liability that needs insurance that section 105 exists. Section 105 is there because section 54 leaves some liability beyond what is provided for in the Act and to be satisfied by the Workcover Corporation. May it please the Court.

GLEESON CJ:   Seven members of the Supreme Court of South Australia have now considered the meaning of the South Australian statutory provision presently in question.  They have all reached the same conclusion.  Although they have not reached that conclusion by identical processes of reasoning they have all applied well‑settled principles of statutory construction.  The case is not an appropriate one for the grant of special leave to appeal and the application is dismissed. 

Can you resist an order for costs, Mr Quick?

MR QUICK:   No, your Honour.

GLEESON CJ:   The applicant must pay the respondent’s costs of the application.

AT 3.27 THE MATTER WAS ADJOURNED