John Pfeiffer Pty Ltd v Rogerson, David
[1998] FCA 815
•9 JULY 1998
FEDERAL COURT OF AUSTRALIA
JURISDICTION - choice of law in tort - workers suffered personal injury in New South Wales - successfully sued employer for damages in the Australian Capital Territory - Master and Full Court of the Supreme Court of the Australian Capital Territory refused to apply the Workers Compensation Act 1987 (NSW) in accordance with McKain v R W Miller & Co (SA) Pty Ltd and Stevens v Head - whether McKain and Stevens correctly decided - whether the provisions of the Workers Compensation Act 1987 (NSW) limiting the amount of damages are:
(a)distinguishable from the provisions of the Motor Accident Act 1979 (NSW) and are substantive not procedural; or
(b)if not, whether the majority approach in Stevens v Head in treating the measure of damages for personal injury as a matter of substantive law is incorrect.
Workers Compensation Act 1987 (NSW) ss 151G, 151H and Part 5
Motor Accidents Act 1979 (NSW) 79
Stevens v Head (1993) 176 CLR 433
McKain v R W Miller (SA) Pty Ltd (1991) 174 CLR 1
Breavington v Godleman (1988) 169 CLR 41
Project Blue Sky Inc v Australian Broadcasting Authority (1988) 153 ALR 490
JOHN PFEIFFER PTY LIMITED v DAVID ROGERSON
AG 102 OF 1997
JUDGES:O’CONNOR, HIGGINS, COOPER, FINN AND MERKEL JJ
DATE:9 JULY 1998
PLACE:CANBERRA
| IN THE FEDERAL COURT OF AUSTRALIA | |
| AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY | AG 102 of 1997 |
ON APPEAL FROM A FULL COURT OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: | JOHN PFEIFFER PTY LIMITED |
AND: | DAVID ROGERSON |
JUDGE(S): | O'CONNOR, HIGGINS, COOPER, FINN AND MERKEL JJ |
DATE OF ORDER: | 9 JULY 1998 |
WHERE MADE: | CANBERRA |
THE COURT ORDERS THAT:
The appeal is dismissed.
The appellant pay the respondent’s costs of and incidental to the appeal, including reserved costs, if any, to be taxed if not agreed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
| IN THE FEDERAL COURT OF AUSTRALIA | |
| AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY | A G 102 of 1997 |
ON APPEAL FROM A FULL COURT OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: | JOHN PFEIFFER PTY LIMITED |
AND: | DAVID ROGERSON |
JUDGE(S): | O'CONNOR, HIGGINS, COOPER, FINN AND MERKEL JJ |
DATE: | 9 JULY 1998 |
PLACE: | CANBERRA |
REASONS FOR JUDGMENT
On 24 April 1997 the Master of the Supreme Court of the Australian Capital Territory (“the Supreme Court”) gave judgment in favour of the respondent in the sum of $31,689.75 with costs in respect of an injury sustained by the respondent at work at Queanbeyan, New South Wales. In doing so the Master rejected a submission that s 151G and s 151H of the Workers Compensation Act 1987 (NSW) (“the Act”) operated so as to deprive the respondent of a right to damages in a sum exceeding his out of pocket expenses agreed in the sum of $1,689.75. The Master held that s 151G and s 151H were not materially different to s 79 of the Motor Accidents Act 1979 (NSW) (“the Accidents Act”). Accordingly, the Master found, in accordance with the majority decision in Stevens v Head (1993) 176 CLR 433, that s 151G and s 151H were procedural only and not binding on the Court as the lex fori in determining whether the respondent could enforce his claim for common law liability in the Supreme Court: McKain v R W Miller (SA) Pty Ltd (1991) 174 CLR 1; Breavington v Godleman (1988) 169 CLR 41.
On 3 December 1997 a Full Court of the Supreme Court dismissed an appeal from the judgment of the Master and affirmed the Master’s reasoning.
The appellant appeals to this Court from the decision of the Full Court of the Supreme Court.
Three issues were raised by the appellant on the appeal:
The approach taken by the majority of the High Court in relation to intranational torts in McKain (174 CLR at 39) and Stevens v Head (169 CLR at 453) is incorrect and should not be followed.
The provisions of the Act are distinguishable from the statutory provisions under consideration in Stevens v Head and ought as a matter of construction be held to be substantive and not procedural. So understood the second limb of the choice of law rules would not be satisfied because by the law of the place in which the wrong occurred, the circumstances of the occurrence would not give rise to a civil liability of the kind which the respondent claimed to enforce in the Supreme Court.
If the relevant provisions of the the Act are not relevantly distinguishable from the statutory provisions considered in Stevens v Head, the approach taken by the majority of the High Court in treating them as not partially extinguishing or making contingent the common law causes of action for damages for non economic loss, and for economic loss (176 CLR at 457-458) was incorrect. The correct position, it was submitted is that the measure of damages for personal injury is a matter of substantive law.
As senior counsel for the appellant correctly acknowledged this Court is bound by the decisions in McKain and Stevens v Head. Other than making the formal submission in terms of grounds 1 and 3 above to preserve the appellant’s position on any future appeal to the High Court no further submissions were directed to grounds 1 and 3.
In support of ground 2 the appellant submitted that stronger language is used in the relevant provisions of Part 5 of the Act than the comparable sections of the Accidents Act and this evinces a legislative intention in the later Act to provide that the only entitlements in respect of injuries to workers in New South Wales are those provided for in Part 5 of the Act and not otherwise. Thus, it was submitted s 151G and s 151H are substantive and not procedural in their operation.
The variation in language relied upon by the appellant to support such a conclusion is the use of the word “may” in relation to the power of the Court to award damages under s 151G in the context of imperative language and the use of the word “shall” in s 79 of the Accidents Act without other words of limitation. The consequence it was submitted, is that the language of the Accidents Act is in terms directory whereas the language of the Act is mandatory.
In our view, the distinction sought to be made as to the choice of language and its statutory effect in the context of each enactment is one without substance when one looks at the statutory purpose and effect of the two statutory enactments. Further, to approach the question of whether there is any relevant difference of legislative purpose and intent on the basis of seeking to draw a distinction between directory and mandatory requirements is an elusive distinction. As was said by the majority (McHugh, Gummow, Kirby and Hayne JJ) in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490 as to such a distinction sought to be drawn (at 516):
“They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning.”
We agree with the Full Court of the Supreme Court and the Master that the relevant provisions of the Act are correctly characterised as being procedural in their operation. So characterised there is no appellable error in the judgment and reasons of the Master or the Full Court of the Supreme Court.
The appeal is dismissed with costs.
| I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justices O'Connor, Higgins, Cooper, Finn and Merkel |
Associate:
Dated: 9 July 1998
| Counsel for the Applicant: | D F Jackson QC and M Cranitch SC |
| Solicitor for the Applicant: | Abbott Tout Harper & Blain as town agents for Hickson Wisewoulds |
| Counsel for the Respondent: | R E Williams QC and F G Parker |
| Solicitor for the Respondent: | Gary Robb & Associates |
| Date of Hearing: | 8 July 1998 |
| Date of Judgment: | 9 July 1998 |
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