Koch and Anor v Andrews and Ors

[1994] HCATrans 448

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No All of 1994

B e t w e e n -

TREVOR KOCH and SHYLIE KOCH

Applicant

and

MARK ANDREWS and DAVID AND

GLENDA ZIERSCH trading as DM AND GM ZIERSCH and KJ WAPPER

Respondents

Application for special leave

to appeal

MASON CJ TOOHEY J McHUGH J

Koch 1 25/8/94

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 25 AUGUST 1994, AT 11.35 AM

Copyright in the High Court of Australia

MS R.A. LAYTON, OC:  May it please the Court, I appear with

MR P.M. SALU for the applicants. (instructed by

Lawson Downs)

MR D.N. BAMFORD:  May it please the Court, I appear for the

first respondent, Andrews. (instructed by Duncan &

Hannon)

MRS. WALSH, OC: If the Court pleases, I appear with my

learned friend, MS A. CARABELAS, for the second

respondents, David and Glenda Ziersch trading as

DM and GM Ziersch. (instructed by Gun & Davey)

MASON CJ:  The Court has been informed that the third

respondent does not wish to take any part in the

proceedings and will not be appearing at the

hearing of this application. Yes, Ms Layton.

MS LAYTON: If the Court pleases, this application involves

an interpretation of some very important sections

of the Workers Rehabilitation and Compensation Act

and they relate to section 54(4b) and

section 54(5), both of which relate to the rights

and obligations between employers and wrongdoers

with regard to the reimbursement of workers

compensation and also the question of contribution

or indemnity between each other. These sections,

notoriously, in other Acts, have always been the

subject of very great controversy and difficulty

with interpretation, and this is not the least of

them.

What has happened in this matter is that the

Full Court of the Supreme Court interpreted a phrase, which appears in both of those sections,
being a phrase "person other than the employer" to

mean that both of the subsections applied when

action was taken against both a wrongdoer and an employer and not just merely a wrongdoer, and in

doing this the applicants say that that

interpretation of the section is quite contrary to
the way in which that phrase has been interpreted

right from the time when legislation was first

introduced in the United Kingdom, right through all

of the States, right through the legislation in

South Australia up to the present time and is

therefore quite contrary to judicial interpretation

of those sections as well.

The argument for special leave devolves into

two main thrusts: the first is that this is a

matter of significant public importance, involving

as it does particular legislation in South

Australia which is of great importance within the

State itself, but also the interpretation that the

court has placed on those words, bearing in mind

Koch 2 25/8/94

those words are used in other sections of other

Acts in similar workers compensation legislation,

may in fact - - -

MASON CJ: But the Acts are now all somewhat different; they

are not all pursuing an identical or uniform

pattern with the result that is increasingly a

decision on one State statute is not a valuable
guide to the interpretation of a provision in

another statute.

MS LAYTON:  I understand the matter that Your Honour raises,

but we say that in this instance, even bearing in

mind some of those State variations, there is still

a significant thrust which says that those words

only refer to a situation in which only the

wrongdoer is being sued; there is no variation on

that. There might be some variation on the fringes

as to whether, in some instances, there can be

contribution with regard to the question of

reimbursement of the amount of compensation, but
quite universally in every single piece of

legislation, with the exception of Queensland which has always had different legislation, it has always

been interpreted the same way. So whilst

Your Honour is correct in suggesting that one

cannot just merely look at another piece of

legislation and therefore say, South Australia

should be interpreted the same way, but the history

of it is just so significant and takes in regard to

the overall philosophy of what workers compensation

legislation is all about, that it should be
interpreted the same way as every other

legislation.

Just to follow up on that, the mere changes

that have occurred in South Australia over a period

of time, in our submission, does not change that

these two fundamental sections should still be

interpreted in the same way. Yes, there have been

changes, but not so dramatic as to warrant an

interpretation which is so different from the way

in which it has been interpreted in the State

before and also the legislation in other States.

So just on that first point, if Your Honours

please, we say that this, on the face of it, does

involve a significantly important point of law, it

is not dependent on its facts - as Your Honours

would have seen, it came up by way of a case

stated - and therefore, on that basis alone, would,

all other things being equal, warrant the exercise

of the discretion for special leave.

The second matter that I come to is that the

would have also seen that there is another decision

applicants submit that the decision of the

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of the Full Court of the Supreme Court of referred to in No 21 on the list of authorities,

namely Workers Rehabilitation and Compensation

Corporation v Commonwealth of Australia and Tempo
Cleaning Services Pty Ltd, and it is a judgment

delivered on 17 September, that that is the only

other decision which has interpreted that phrase

differently, and it did it within the context of

section 54(5). I might say, it was also delivered

after this case had been argued but before the
decision in this case had been delivered, and that

is why the two of them do not talk about each

other's decision, for that reason. We say that

both in the Tempo case and also in this case there

have been a wrong analysis of the legislation and

the relevance of any changes to the legislation

upon the interpretation of that phrase. In

particular, if I could draw Your Honours' attention

to the applicants' book page 44 line 4, where

Justice Perry, who was the primary judge who gave the reasons in this case and with whom
Justice Mulligan agreed, said specifically that he

thought there was:

No useful purpose would be served by

canvassing the differences between the various

Workers Compensation Acts -

and we say that certainly all other cases which

have looked at the question of the interpretation

within their own legislation, which includes this always had regard to the history of the legislation

and also had regard to other pieces of legislation.

So for this Court to, as it were, to blinker its

eyes to the history of the interpretation of this

phrase, we say is an inappropriate way to approach

it.

A similar point is made also in the decision of Justice Perry, and that is at the application

book page 48 line 23, where His Honour stated that:

It is not clear to me how it is thought that

question (c) in the Case Stated is a question

which arises in the action.

He is referring there to the answer to No (c) in

the Case Stated.

Now the importance of His Honour not appearing

to appreciate the significance of 54(5) is this:

that subsection 54(5) is to all intents and

purposes in exactly the same wording as the

original UK legislation, as in the legislation in

1932 in South Australia, the legislation in 1971 in

Koch 25/8/94

South Australia, and it occurred prior to the

amendment to the Act which introduced

section 54(4)(b). Therefore, the submission is

this, the importance of that is that the wording is

exactly the same, the interpretation of that

section had been exactly the same until such time

as 54(4)(b) was then introduced, and it is after

that period of time that it is suggested that

because 54(4)(b) ought to be interpreted

differently, 54(5) ought to be interpreted

differently too. Our submission is that the

importance of section 54(5) is, because it uses

exactly the same words as has already been used,

why change the interpretation of the definition of

those words when nothing else has been changed

about the wording? What warrants the court saying

that those words should be interpreted differently,

merely because other aspects of the Act have

changed?

So far as the analysis in both the Tempo

decision, and also in the decision of the

Full Court in this matter, the applicants'

submission is this: that whilst much has been made

of the various differences between what was

pre-1986 and post 1986, it is not so significant a

difference as to warrant the change in the way in

which there can be indemnity for compensation paid.

In other words, certainly the new sections of the

Act introduced ceilings and limits, there is no

question about that, but we say that it did not try

and change the fundamental structure of the Act so

that instead of the corporation or the employer

being essentially responsible for compensation
payments, it then became the industry, the
insurance industry outside that area of

compensation. Because the net result of the

interpretation of the Full Court is this: that if

an employer is found negligent only to an extent

of, say, 1 per cent, it can get reimbursement of

all of the compensation paid and it can also have a

a wrongful third party to the extent of its	successful application to have contribution against
negligence to the worker. So it gets a double
barrel, as it were.

So we say, yes, it is true that there should

be a ceiling, but there should not be a windfall,

and the converse side of that is that the employer,

who may be only marginally negligent, say

1 per cent negligent, is still up to pay the
corporation the whole of the workers compensation

payments. Now the net result of that is that the

whole philosophy of the Act has been changed, as a

consequence, we say, of this interpretation,

because no longer is it regarded the province of

the corporation or the employer to take prime

Koch 25/8/94

responsibility for the workers payments of

compensation; it does so initially, but it can get

it all back again so long as somebody else is

negligent, and it does not matter the degree and,

of course, the worse the degree the more

exaggerated the consequence is. It is for that

reason that we say the interpretation should not be

changed. There is no warrant for doing so and, because of the legislation which has, as I have

said, always remained the same, it should be

interpreted in the same way.

The other matters that I refer to are these: the two prime cases, if Your Honours please, on the

interpretation of the legislation, is the case of

Cory & Son Ltd v France, Fenwick & Co, which is

case No 17 on the list of authorities, and that

particular case canvassed exactly the same

arguments as has arisen in this case, and the
argument that was raised in that case was whether

or not the wording of the section of the

United Kingdom Act should be interpreted as

including an employer as well as a stranger, and
the court quite unanimously decided that the
wording was not ambiguous and that, bearing in mind

the whole context of the legislation, and the

result, if it were not interpreted that way, namely

that an employer could obtain indemnity against a

wrongdoer for the whole of the compensation and be

indemnified, even though the employer was liable,

it thought that that was a quite inappropriate
interpretation.

Similarly, the next most important case is the case of Murray-More, which is No 19 on the list of

authorities, and here the court very carefully

canvassed the background to the legislation, and if

I could take Your Honours to that case only to

refer to some primary matters which, I submit, are

important for this case. Turning to page 339 of

that decision, Your Honours will see that

Chief Justice Barwick went to some pains to

point out the history of the legislation which was,

in his view, relevant to the interpretation of the

New South Wales legislation and to point out that

since Cory's case, which is referred to in there,

that similar wording had been interpreted in
exactly the same way, in all other States. And

Your Honours will see that referred to at the

bottom of page 339.

At page 340 of that decision, Your Honours

will see that what motivated, in part,

Chief Justice Barwick to decide that section 64 of

that Act, which is similar, we say, to

section 54(5) of the current Act, to apply only to

a wrongdoer and not a wrongdoer and an employer, is

Koch 6 25/8/94

that there was a specific provision in section 63

for where an employee sues an employer at common

law, and he therefore goes on to say that in

section 64:

In my opinion, it intends to cover the case where the only liability of the employer to the worker is the statutory liability to pay

compensation.

We say that the same is true in our legislation

too. The first three paragraphs of section 54

refer to the employer's liability to the worker,

quite separately from any wrongdoer, and it is only

when one gets to sections 54(4)(b) and (5) that

there is reference then to a wrongdoer. On the

same basis of logic, we say that the reasoning

applied by Chief Justice Barwick is also true in

this case.

TOOHEY J:  The Full Court seems to have been influenced by

the fact that this was new legislation in which the
rights of the worker against the employer were, I
think to use the expression in the judgment,

"severely curtailed".

MS LAYTON: That is true.

TOOHEY J:	And what do you say about that as a sort of basis for arriving at a different interpretation?
MS LAYTON:	What we say is, that would be valid if, for the

first time, this particular section occurred in the

new Act. If there was something different about

it one could say, yes, well that is incorporated as

part of the difference, but where one has got an

inheritance of that word being used in workers

legislation over that period of time, and it still

remains unchanged, it is reasonable to say that it

should receive that interpretation unless there is

something so dramatically suggesting that it should

not, and we suggest that there is nothing that does	that. If Your Honours would perhaps just go
briefly to the legislation in South Australia, and
it is set out in the document numbers 2 to 5,
Your Honours will see the extraordinary similarity.

Taking Your Honours first of all to document

2, which refers to section 71 of the Workmen's

Compensation Act, you will see that that is in

almost precisely the same terms as the

United Kingdom Act, referring to where:

compensation is payable under this Act was
caused under circumstances creating a legal

liability in some person other than the

employer to pay damages -

Koch 25/8/94

then it refers to, in subsection (1), to the right

of the worker to:

take proceedings both against that person to

recover damages and against any person liable

to pay compensation -

and then it refers to the fact that if the worker

recovers compensation then the:

person who has been called on to pay an

indemnity under the section of this Act

relating to sub-contracting, shall be entitled

to be indemnified -

So that sets out the basic framework which was used

then.

Then if one moves to section 84 of the

legislation in South Australia, which is document 3

in the book of authorities, Your Honours will see

that almost exactly the same wording is used.

There is no significant difference. Again,

section 84 starts off in exactly the same way.

Subsection (a) gives the worker the right to take both an action for:

damages and ..... compensation.

Subsection (d) refers to the indemnity.

Then if we move to the next document on the

book of authorities, namely document 4, one can see

again, under 54, if I can just highlight these

matters: subsection (1) refers to obviously the

limitations on the workers rights to claim common

law damages from an employer, so that is where it

is only restricted to the employer; subsection (2)

refers to:

liability arising out of the use of a motor

vehicle -

which is not relevant here; subsection (3) again

refers to the employer, and I ask Your Honours to

note that it refers to liability:

for non-economic loss -

It does not actually refer to damages, and there is a significance in that which I will draw to

Your Honours' attention in a moment.

Subsection (4) then again refers to the

rights:

Koch 25/8/94

against an employer for damages for

non-economic loss -

and says that they are limited to:

1.4 times the prescribed sum.

Then we come to subsection (5), and this is where

we say that it is to all intents and purposes in

exactly the same form as all of the previous

occasions of legislation. So it starts off:

Where -

(a) compensation is paid or payable under

this Act in respect of a compensable

disability;

(b)	a right of action exists against a person
other than the employer for damages in respect of the disability,

the person by whom the compensation is paid or
payable is entitled to recover the amount of
the compensation in accordance with

subsection (7).

So, if they wanted to do something different and

say, look it should be not just limited to where a

wrongdoer only is being sued, there are various

ways in which that could be done.

Just one final point - I notice the red light

has come on - that the importance of the use of the

word "damages" in subsection (5) and

section 54(4) (b) is this:  "damages" is defined

under section 54(8) as being - and Your Honours may

have to turn to the next document which is No 5 on

the authorities - as including:

any form of compensation payable apart from

this Act in respect of a compensable

disability;

I also point out that the word "damages" is used in (4), whereas in all of the other subsections which talk about the legal liability of the employer to the worker, it refers to non-economic loss, not

damages, that there is an argument that
non-economic loss is not apart from this Act, in

other words, it is to do with common law and it is

not to do with apart from this Act. And if one

further goes to the question of what "non-economic

loss" means, that is in fact defined within the Act

itself in subsection (3).

Koch	9	25/8/94
MASON CJ:	Your time really has expired.	I think you have

to bring your argument to an end.

MS LAYTON:  In summary, we say that there is not

sufficient - - -

MASON CJ: There is no need to summarize.

MS LAYTON:  I have nothing further to say, thank you,

Your Honours.

MASON CJ: Yes, Mr Walsh. Are you presenting the argument

first or is Mr Bamford presenting the argument?

MR WALSH:  I am not sure, Your Honour; I believe I am.

MASON CJ: Well he is on the record before you; if he wants

to, he is entitled to go first.

MR WALSH: Indeed, Your Honour.

MR BAMFORD:  May it please the Court, in the circumstances,

it may be appropriate for the second respondent to

lead first.

MASON CJ: Very well.

MR WALSH:  If the Court pleases, my learned friend says that

the decision in Murray-More in some way should have

influenced the Full Court of the Supreme Court in the interpretation of the section previously. If

we turn to page 74 of the booklet of authorities
which my learned friend has put before you, it

refers to:

Section 64 is part of a scheme of

compensation: it is not part of any scheme to

adjust rights between tortfeasors.

I emphasize that.

Indeed, when legislation to the effect of

section 64 first appeared in workers'

compensation legislation there was no

contribution between tortfeasors -

If I may jump a little to the words after "Remedies

at Common Law" -

This part of the Act sets out, first to

indicate that the Act does not intend to take

away common law rights, secondly, to provide

against the possibility of the workman

obtaining both compensation and damages, and,

thirdly, to provide an indemnity for the

employer who has paid compensation by the

person who is responsible in law for the

Koch 10 25/8/94

occurrence which has caused him, the employer,

to be liable to pay compensation.

His Honour then contrasts section 63:

Section 63 provides for the case where the

employee sues the employer at common law. It

provides in section 64, in my opinion, for the

case where the employee sues a person or

persons other than the employer.

What the Court was called upon to do in

Murray-More's case was to compare section 63 and

section 64. They were talking on the one hand

about the liability of the employer and by

necessary implication by juxtaposition of the two
sections alongside each other, therefore the words

in section 64 ought to be read in a particular way. Now, in our respectful submission, that is not

the case in the present legislation that is under

consideration. What has happened in the current

legislation is that there is an abolition of common
law rights, save for a limited right to

non-economic loss. Secondly, there was no

juxtaposition as there was in the case of

Murray-More, of the two sections contrasting to

each other. What we do have, by way of

section 54(4)(b), which relates to the first two

questions, is an issue that deals with, or section

that deals with the rights of contribution, unlike

this legislation, and the right to contribution is

removed by section 54(4)(b). So there is a clear

distinction to be drawn between the legislation in

Murray-More's case and in the case at bar.

Furthermore, in Murray-More's case, what the

Court decided was that the words were open to interpretation, therefore it was necessary to look

at the actual structure of the Act to determine

what is the appropriate answer to the words that

were used, and they came to the conclusion,

specifically and importantly, for two reasons: one

is, the issue of common law rights, which were

preserved; two, that there was a juxtaposition of

the two sections in the way that they were which

assisted in an interpretation; and three, because

of the fact that there was no attempt by Parliament

to effect the rights as between tortfeasors.

What the Full Court did, in this case, was to

recognize the radical change in the legislative

intent as described in the section itself; it was

quite different. Curiously enough, a separate Full

Court, in Tempo's case, came to the same conclusion

in relation to section 54(5). They were

differently constituted - - -

Koch 11 25/8/94

MASON CJ: Well why is that curious?

MR WALSH:  I am sorry, not curious, Your Honour; we say

importantly, I am sorry, that is a poor choice of
words. Importantly that the court came to the same

conclusion, in effect, about section 54(5).

His Honour the Chief Justice, Chief Justice King,

determined in Tempo's case that the structure of

the legislation was such that you could not fairly

turn to Murray-More's case and say that can assist

you in the interpretation of this legislation

because the legislation was entirely different, in
particular, and more importantly, because of the
issue of the lack of a common law right, save for a
very limited extent. If one considers what the

Full Court did in Tempo's case in relation to

section 54(5), it is perfectly, in our respectful

submission, proper to have reached a conclusion

that it did, that it is simply different pieces of
legislation. They must be looked at differently.

The court in this case reached the same conclusion independently, and the anomalies that my learned friend says arise equally arise - as the court

reflected on the arguments which were all put

before the court, the anomaly that is going to

arise with the interpretation that my learned

friend seeks to place on these sections, is that

firstly, in relation to section 54(b), it is going

to depend whether a plaintiff by chance sues the

employer as to whether there should be rights of

contribution between them. By pure chance, because

if an employer is not joined in that case, then the

section clearly indicates you cannot get

contribution, and contribution can mean indemnity. That cannot be right, said the Full Court and, in our respectful submission, that must be so.
Secondly, in relation to section 54(5), the court determined that, if my learned friend is

right, we can have a situation whereby an employer

can be only theoretically 1 per cent negligent, but

cannot recover anything from a 99 per cent

negligent third party tortfeasor, by way of the

indemnity provision under section 54. That cannot

be correct, in our respectful submission. The

scheme of the Act was that common law claims were

removed, in a sense. They are now and they were

severely limited at that time. The intention was

that there was not to be any liability on the part

of an employer at all - no liability. So it is not

a case of looking at, as my learned friend says,

the inequity of one as opposed to the other; there

is no liability in negligence in a common law claim

to the worker. That deals with the inequity point.

My learned friend's interpretation leads to a

completely inequitable issue or result in terms of

Koch 12 25/8/94

the employer. The court also thought it was

important that the structure of the Act had changed

in so far as the introduction of WorkCover, as the primary authority that was to pay compensation, as

opposed to the employer, except in the limited case
of exempt employers.

So we say, with respect, that my learned friend is wrong, firstly in asserting that this

case does raise issues of importance with respect

to the interpretations of statutes in other cases -

it does not - and in truth, all the cases on my

learned friend's list of authorities in support of

that proposition, all relate to the old Acts, if I

may put them in that way - the old schemes. This

is totally a different scheme and not one authority

is on the list which will allow us to truly compare

a new scheme of this kind. So we are talking about

different schemes, and those authorities are not,
in our respectful submission, of assistance.

TOOHEY J: That is not quite the argument that has been put against you, Mr Walsh, I think. It is really that

while this Act may be different, a particular
expression has been given a particular meaning over

a long period of time and it might be thought

curious that Parliament should use that

expression, but in a different sense.

MR WALSH:  It is not entirely the same, Your Honour.

Firstly the expression that is used has additional

words, which may well be seen to be important.

The second point though, Your Honour, is this: it

is all very well to say, yes, the earlier
legislation was interpreted in a particular way,

but one must go back to the essential reasoning as

to why the court interpreted it in that way, and

the reason it interpreted it in that way was by

saying, "Well look, it is open to other

interpretation, let us look at the specific

sections and the scheme of the Act", and, important

in that process, was that comparison of sections 63

and 64, because having said or talked about,
in section 63, the liability of the employer for

damages, when you get to section 64, obviously a

person other than the employer, or some person

other than the employer - which is the words used,

not identical to this, there are additional words -

naturally must mean, literally as it suggests by

way of the juxtaposition, some person other than

the employer referred to in section 63. Thus it

was that if you look at the underlying reasoning

behind Murray-More's case, the Full Court, in both

cases here, was entirely justified in reaching the

conclusion that it did.

Koch 13 25/8/94

I remind the Court that if one looks at

section 54(4), which is contained in the book of

authorities that my learned friend has provided to

you - it is either (4) or (5), I believe - yes,

(4). I beg your pardon, that is the old section.

It is at paragraph (5). If one looks at the fifth

authority on the first page, that provides

section 54(4)(a) at the foot and then over the

page, (4)(b), and that provides, in essence, where

it is not a motor vehicle accident, an action is

taken:

against a person other than the employer for

damages in respect of the disability,

the other person has no right to recover

contribution from the employer.

The argument of the applicant in this case is that

if, in fact, there is an action against both

employer and employee which was, in effect, this

case, then the contribution can, in fact, be

awarded between the tortfeasors. But if the

employer had not been included in the action, then
the third party cannot join the employer as a

co-defendant or a third party, because of the very

words used in subsection (4)(b), and one can

clearly see that what the section is saying is that

there shall be no right of contribution which can

be indemnity. It must be wrong to say, as what my

learned friend will argue, in this Court, if appeal

is granted, that "No, that is the result that must

be achieved by their interpretation"; it cannot be

right, with respect.

And then when one goes to subsection (5), the

indemnity section, no comparison process capable

with an earlier section, which was the underlying

reasoning in Murray-More's case, and my friend says

that, never the less, there should be no indemnity

in the case of where the employer was guilty of

some negligence when the employer has no liability

anyway, because of the very scheme of this Act.	If
the Court pleases, they are our responses.

MASON CJ: Yes. Mr Bamford, do you wish to address any

argument to the Court or are you content to rely on

what Mr Walsh has said?

MR BAMFORD:  Yes, the first respondent adopts the

submissions advanced by the second respondent in

the matter.

MASON CJ: Yes. Ms Layton.

MS LAYTON: Three short points in response. Firstly as to

my friend's argument that it is a mere matter of

Koch 14 25/8/94

chance as to whether or not the employer is liable,

we say this: firstly, the subsection itself

requires that an action be taken against a person.

In other words, the very preface to the section,

quite regardless of anything else, requires an
element of chance because if the worker does not

take a natural action, as distinct from there being

a right of action existing, which is the way

subsection (5) refers to, there is going to be a

matter of chance whether this is ever brought into

play.

The second matter is: Your Honours would have

been aware that the question of what a worker does

and how a worker takes an action, when there is

compensation and also a suggestion of negligence

against an employer or wrongdoer, has always been

the subject of chance; there is always a gamble as

to whether or not it is worth their while to take

an action and if so against who and for how what.

That has always been the way, there is nothing new about that.

The third matter that my friend mentioned says

that if the wrongdoer is found to be mostly liable

and the employer only 1 per cent liable, then how

outrageous it is that the employer should not be

able to get contribution for the compensation

payments that have been made. We say that has

always been the case. That is what is called the

liability of the employer always, to be responsible for the workers compensation payments. That is the

way it has always been. It has never been as in

common law and that is the way that subsection has

always been interpreted, so there is nothing new

about that.

The other final matter that I mention is the

importance also of the words, "action is taken

against", which is in section 54(4)(b) in

comparison with subsection (5), and the importance
is this:	we say, section 54(4)(b) is designed to

stop inappropriate joining of an employer when that

employer has not been joined by a worker. In other

words, it is to stop a third party saying, "Well

look, let us rope the employer into this and see if

we can get some contribution out of him", when that employer is not being sued. That is the aim of it.

So it is important to note that it is talking about

action taken and not right of action.

The very final point is this: that the Full Court made much of the fact that

section 54(4)(b) was endeavouring to keep damages

below a ceiling, but it does not. It only refers

to contribution, it does not refer to indemnity,

and therefore to the extent that indemnity is

Koch 15 25/8/94

involved, which could be contractual, or it could

arguably be recoupment in full under a negligent

situation, that is not covered, and we say for good

reason, that this section was designed to only

operate where a wrongdoer only is found liable and

not an employer. And that all fits into a pattern

whereas my friend's submission does not. And that

completes my submissions, if Your Honours please.

MASON CJ:  Thank you, Ms Layton.

The question sought to be argued in the

proposed appeal relates to the construction of an
ambiguous expression in a State statute, which has been the subject of extensive amendment, so that a

decision in the present case would not necessarily
operate as a guide to the interpretation of

statutes in other jurisdictions. The answer to the

question sought to be raised raises no matter of

general principle of statutory interpretation and

depends upon a close analysis of the particular

provisions of the Act.	The case is therefore not
appropriate for the grant of special leave.	The
application is refused.

MR WALSH:	If the Court pleases, we ask for costs.
MS LAYTON:	That is conceded.
MASON CJ:	The application is refused with costs.

AT 12.17 PM THE MATTER WAS ADJOURNED SINE DIE

Koch 16 25/8/94