John Holland Pty Ltd v Victorian Workcover Authority

[2009] HCATrans 63

[2009] HCATrans 063

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M16 of 2009

B e t w e e n -

JOHN HOLLAND PTY LTD

Plaintiff

and

VICTORIAN WORKCOVER AUTHORITY

Defendant

Summons for directions

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO LINK TO MELBOURNE

ON THURSDAY, 2 APRIL 2009, AT 9.00 AM

Copyright in the High Court of Australia

MR M.D. WYLES:   If your Honour pleases, I appear with my learned friend, MR S.P. DONAGHUE.  (instructed by Harris & Company)

MR P.J. HANKS, QC:   Your Honour, I appear with MS F.I. GORDON for the defendant.  (instructed by Corrs Chambers Westgarth Lawyers)

HIS HONOUR:   Mr Wyles, I have some familiarity with some of the papers.  What is it, do you say, that I should do?

MR WYLES:   Your Honour, we submit that the matter be retained and referred to the Full Court.  Can I deal specifically with a matter that was raised yesterday – as we understand it, your Honour, a matter concerning whether the proceeding in this Court raises issues that are not within the matter that is to be heard and determined in the Magistrates Court.  In that regard, relevantly, in the Victorian prosecution the issue of the informant’s authority, Mr Gildea’s authority, to bring the proceeding will be within the matter.

Your Honour, we provided to the Court yesterday a comparative table of provisions and the first section we set out was section 130 of the Occupational Health and Safety Act 2004 (Vic). Your Honour will see there, pursuant to subsection (1) authority is conferred on the defendant here to bring proceedings for an offence against the Act and then the defendant also has power to confer authority on the inspector insofar as, your Honour, we can work out by having regard to various cases where the issue as to the authority of the informant to proceed has been dealt with.

If the matter were simply to be left to be dealt with in the Magistrates Court, the broader issue which we raise in this proceeding as to the authority of the Victorian Workcover Authority to bring proceedings for an offence against the Act would not necessarily be dealt with and that authority could not be dealt with by the magistrate.  The magistrate would be confined to dealing with the authority of the informant here. 

HIS HONOUR:   I am not sure that that is right, Mr Wyles, but I would have thought that it would be open to your client to say that if this is the case that is sought to be made, that there is no proceeding in the Magistrates Court over which that court has jurisdiction because there is no proceeding instituted by someone with sufficient authority to do it, that person’s apparent authority not persisting on account of the engagement of section 109.  Be this as it may, that would – if that argument were to be available, it is an argument which you seek to maintain in this Court to intercept the prosecution on a ground either limited to or including a ground of want of jurisdiction, I would have thought, in the Magistrates Court.

If that is a part of, or the foundation for, the action in this Court, then the cases to which your side drew my attention, namely, Flanagan v AFP 60 FCR, particularly at 186 and following, but more significantly perhaps, Sankey v Whitlam 142 CLR, particularly at 24 or thereabouts, would suggest that, at least at this point in the proceeding, it would not be right to prevent it going forward.

MR WYLES:   If your Honour please.  Can I inform your Honour, if it be assistance on that point, that insofar as the proceeding in the Magistrates Court is concerned, the position is that John Holland has not, as yet, entered a plea, that no election has been made as to whether that matter would proceed summarily pursuant to section 53 of the Magistrates’ Court Act or by way of committal.  There has been no real or substantial step taken in that proceeding, your Honour, and it has been adjourned to an administrative mention on 21 September 2009 where, at most, what might result would be a further adjournment to a contest mention.

HIS HONOUR:   Yes.  Can I interrupt you at that point, Mr Wyles, before we come to any further question about what directions should now be made and ask you, Mr Hanks, do you wish to say anything about whether further directions should now be made having regard to the issues that have been lightly touched on this morning?

MR HANKS:   Your Honour, it is our position that we would ask and, indeed, join with the plaintiff in asking that the Court make directions that will facilitate the stating, we think, of a special case for resolution by a Full Court.  I have nothing further to add, your Honour, what we would put in writing.

HIS HONOUR:   Yes.  Mr Wyles, what orders are they that you seek?

MR WYLES:   Does your Honour have our written outline?

HIS HONOUR:   I do.

MR WYLES:   At paragraph 17 at point 30 on page 3, your Honour.

HIS HONOUR:   Yes, so that would be defence ‑ ‑ ‑

MR WYLES:   Our learned friends have requested the defence by 17 April and we do not cavil with that if that is convenient to the Court.

HIS HONOUR:   Yes.

MR WYLES:   Then the date in (b), your Honour, taking out the words “If the defendant does not demur”, that date would move to 27 April.

HIS HONOUR:   Now, the parties speak in terms of proceeding by way of special case rather than stated case.  I should say to the parties that unless there is some good reason to proceed by special case I would invite attention to the desirability of proceeding by way of stated case.  I know that the common response made is “But under a special case we have benefit of the capacity to draw inferences”.  That is precisely why there is advantage to proceeding by way of stated case.  Is there any reason why this matter, if it is to go forward in the form of questions on agreed facts, should not go forward as a stated case rather than a special case?

MR WYLES:   Not from our point of view, your Honour.

MR HANKS:   Nor from ours.

HIS HONOUR:   Yes.  Now, do I need to give parties timetables within which they should set about reaching these agreements?  Is it sufficient if I fix the time for defence as 17 April and indicate that the matter would come back for further directions at a date to be fixed in the week commencing 11 May this year?

MR WYLES:   No, your Honour.

HIS HONOUR:   If parties of this stature cannot get their act together and agree upon a stated case or, at least, determine that that agreement is not possible by that time, I do not think any amount of direction from me is going to solve that problem.

MR WYLES:   If your Honour please.

HIS HONOUR:   If I direct then:

1.The defendant file and serve its defence on or before 17 April 2009.

2.Adjourn the matter for further directions to a date to be fixed.

3.Costs of today be costs in the cause.

Is there anything you would wish to add to that, Mr Wyles?

MR WYLES:   No, your Honour.

HIS HONOUR:   Mr Hanks, is there anything you would wish to add or subtract from that?

MR HANKS:   There would be nothing from me, your Honour.

HIS HONOUR:   Yes.  There will be orders in those terms.  You will notice that I have not included in the order any direction about the date to be fixed.  Counsel should order their affairs on the assumption that it is likely that a date will be fixed during the week of 11 May.

MR WYLES:   If your Honour please.

HIS HONOUR:   Yes.  Is there anything else that counsel wish to raise?  No, very well.  Adjourn the Court.

AT 9.11 AM THE MATTER WAS CONCLUDED