Koljibabic v WMC Resources Ltd

[2003] HCATrans 427

[2003] HCATrans 427

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P73 of 2002

B e t w e e n -

SLOBODAN KOLJIBABIC

Applicant

and

WMC RESOURCES LTD

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 23 OCTOBER 2003, AT 2.34 PM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please your Honours, I appear my learned friend, MR G.R. HANCY, for the applicant.  (instructed by Slater & Gordon)

MR M.J. McCUSKER, QC:   May it please the Court, I appear with my learned friend, MR L.F.A. NIXON, for the respondent.  (instructed by Clayton Utz)

McHUGH J:   Yes, Mr Walker.

MR WALKER:   Your Honours, if the Full Court decision in this case is correct or stands, then my client is, we think it common ground, liable to proceedings for the injury he claims he suffered as a result of the respondent’s allegedly poisonous gaseous emissions to have his claim determined on a far more onerous and less compensatory scale than would otherwise be the case.  That is why the fact that we have restarted proceedings, after the original proceedings were held to be a nullity by reason of not having been the subject of prior leave of the District Court, is not to the point as an argument against special leave.  The second case is nowhere near the equivalent of the first case because of intervening legislative amendments.

Your Honours, this is a case about deeming and deeming of a peculiar kind in a number of different ways.  First of all, it is a deeming provision, the words of which have, but for the decade of the 1960s, been in effect in this State since 1912 as to the critical part of the wording.  Second, it would appear that the point which succeeded, not before the first appeal, Judge O’Sullivan, but on the second appeal to the Full Court, it would appear that the point is one which has been available since 1993, but has certainly not been thought of and used for all of that period.  It is a new point.

Third, it is a most peculiar deeming provision because the appeal succeeded to the Full Court on the basis, if I may paraphrase, that the words meant what they said when they deemed someone who was not an employer of my client to be the employer of my client and to mean so throughout the whole of the Act referred to in the deeming provision.

KIRBY J:   It does say “for the purposes of the Act”.

MR WALKER:   Quite so, and that is, if I may say so, with respect, the robust foundation of the judgment from which we seek special leave to appeal.  It does say “for the purposes of this Act”.  The third peculiarity of this deeming provision which certainly gives rise to a point of general public importance is, as the application book at page 45, paragraph 29, makes crystal clear, though it may have occurred to the respondent’s lawyers to plead this point in answer to my client’s claim, it did not appear to have occurred to anybody – and it would appear here they are probably in good company State‑wide – to notify the relevant wages deemed for the relevant employees deemed so as to get an actual costly insurance policy.

In other words, critical provisions of the Act which underlie the entire social purpose of it, namely, that it be funded by premiums paid according to the wages and other allowances made available to employees, have not been observed and nothing in the Full Court’s reasoning – not a syllable, with respect – explains how it is that a deemed employer obtains the benefit of something as unmeritorious as a notice provision and yet does not have to perform something as meritorious as contributing to the premium pool out of which compensation is payable.

This, in our submission – and the provisions to which I refer are sections 160 and 170.  They are in forms familiar to your Honours.  They require, in particular, notification under section 160 of details concerning the wages, bonus, overtime, et cetera, paid for employees, and the premiums, again, in a way familiar to your Honours, are paid by estimate, upon an estimate, and adjusted according to actual experience, including changes during the currency of the policy.

So that if the deeming provision ought to have attracted the robust literal approach to which your Honour Justice Kirby has referred, then it is impossible to understand how that robustness survives the scepticism excited by the fact that section 160, the premium provision, which is criminal – see section 170 – is quite incapable of being complied with.  Why is it quite incapable of being complied with?  Because the details which one would need to know as a deemed employer are classically the confidential details of dealings between real masters and real servants in whose business you have no right to intrude.  You are not being authorised by the statute to make the kind of calls on premises or searches of documents which are provided for otherwise in the statute.

KIRBY J:   I understand this.  The robust argument, it will be put to us, is simply what the Act says in its terms.  The fact that it has not been raised before is simply a great tribute to Mr McCusker and his junior ‑ ‑ ‑

MR WALKER:   Quite so, your Honour.

KIRBY J:   ‑ ‑ ‑ and the fact that it is unfair or unjust, that is a matter for the legislature.

MR WALKER:   Yes, your Honour.

KIRBY J:   I mean, we have had provisions of this kind in New South Wales for some time, have we not?  There is a deemed contractors, employers ‑ ‑ ‑

MR WALKER:   Yes.  These provisions are familiar and have, hitherto, been regarded as wholly beneficial.  This is a case where there is no benefit at all.  This is a case where an apparent benefit has been turned into nothing other than an obstacle entirely lacking of merit.

KIRBY J:   I realise that, but can it be said that as to those other breaches of the Act, they will have to look after themselves?  If there have not been premiums paid, maybe they are now paid, paid by all employers in this situation.

MR WALKER:   That is one of the reasons why this case is of general public importance, because this is just not a case at all about whether an injured plaintiff is entitled, without the apparently hollow technicality of prior leave of the District Court, to sue somebody who is not in fact his employer, but somebody who was responsible for putting out, negligently, poisonous gases that injured him.  It is not just a case about that, as to whether we can be tripped up and held out in that fashion.  It is a case about whether the occupiers of industrial and commercial premises in this State are in fact obliged to fund, by premiums, calculated in a fashion which I am about to show is invidiously impossible to the point of clearly contrary to the purpose of the statute, whether all that follows because of a deeming provision, a deeming provision of a kind which started in 1912 when the Act started.

McHUGH J:   But is it not most unlikely that the legislature would intend to give a deemed employee in your situation privileges and benefits that were not open to true employees?

MR WALKER:   We are not claiming any privilege or benefit.

McHUGH J:   Yes, you are.

MR WALKER:   It is the other way round, your Honour.  We are not asking for compensation.

McHUGH J:   You seek an advantage that you would not have if you were an employee in the proper sense of the term.

MR WALKER:   We do not sue as an employee.  We do not sue as an employee.

KIRBY J:   That was your poor client’s point.  He did not think of himself as an employee, therefore, he did not give notice.

MR WALKER:   It was not by dint of any bargain between master and servant or any representation by union to employer by which my client could shave the odds of the risks involved in inhaling poisonous gases emitted by Western Mining.  Western Mining was running premises upon which my client went in the course of his employment by another who contracted with Western Mining.  So we are not claiming any privilege at all, in answer to your Honour Justice McHugh.  We are simply seeking to be able to sue on a pre‑existing liability imposed at common law of, one would have thought, the most basic kind.

KIRBY J:   But can I put Justice McHugh’s point in a slightly different way?  Your client, in different circumstances, with a bankrupt employer, would want the benefit of the workers’ compensation statute but not be prepared, as it were, to take the burdens of the statute, which include the obligation of giving notice and getting the agreement of the District Court to proceed.

MR WALKER:   We wholeheartedly accept the burden of giving notice in an action against an employer.  This is because there is an elaborate system of election as against your own employer between damages – common law – and compensation – no fault statutory.  So, of course, we accept the burden there.  No policy has been suggested as to why someone in Western Mining’s position ought to be protected by prior leave where their only role, under section 175, as it is now numbered, is a backstop in the case of an insolvent contractor, bearing in mind that this is a system for compulsory insurance, so the contractor is meant, of course, to have insurance in place.

May I remind your Honours that there is section 86 – tab 5 of the folder of materials supplied to the Court.  There is section 86, which made it crystal clear, as a matter of how one reads the whole statute and how it fits within the broader world of the liabilities which may descend upon a number of different persons and corporations when a person is injured that we are not to read by implication or interstitial application the kind of devastating effect which has occurred in this case.  Section 86 says:

Except as expressly provided by this Act –

and I stress the word “expressly”; one is going to find words talking about an effect on something in order for there to be an effect –

nothing in this Act affects any liability that exists independently of this Act.

The liability of Western Mining to my client “exists independently of this Act”.  It is common law.  Section 86 says you are not going to find an effect on that except expressly, that is, by words that say that is affected.  Well, in this case, the suggestion is that the former provision in relation to leave being required from the District Court, found in a provision which applies only to actions brought against the employer for damages, has expressly required the same kind of leave for an action in damages against somebody who is not an employer.

The argument neatly goes, they are an employer because you will find in another part of the statute a provision which has been there since 1912, since long before there were all these other provisions about leave and the interaction between damages at common law and compensation under the statute, you will find a provision which, parroting the same phrase used in 1912, has now picked up the house that Topsy built, by the accretions and the add‑ons, not always matching, has now picked up these provisions, 1993, more than 90 years after the first appearance of the term, “for the purposes of this Act”, so as to render somebody, an employer, for the purposes of saying, “You have to get leave before you can sue me, notwithstanding you want to sue me, not for anything to do with the contract of employment and not for anything where I ever owed you the duties of a master to a servant.”

Now, your Honours, one of the oddities about this deeming provision and a mark of why this Court should grant special leave, because there is more to be said about deeming provisions at – this removed from 1912 than there was in 1909, when Sir Samuel Griffith uttered his famous dictum, one of the reasons is that this kind of statute represents a kind of social settlement of a flexible and fluctuating kind, according to political and policy and economic matters.  It is not the kind of thing where one could ever believe that you sweep it all aside and start from nothing every time you want to introduce major or minor adjustments.  So it is again to be characterised ‑ ‑ ‑

KIRBY J:   It really comes down to whether or not the words are intractable, that is the really ‑ ‑ ‑

MR WALKER:   Yes.  The point I am putting, your Honour, is that this is a statute like a palimpsest.  It has accretions and overlays and it is not to be thought that when a term that meant one thing in 1912, “for the purposes of this Act” which was then understood to be in that form, should slavishly – and we stress slavishly – so as to defeat purpose elsewhere, be carried through to provisions which cannot be seen to be advanced purposively by any such deeming.  No purposive advancement in relation, for example, to section 160 which, as your Honours appreciate, is quite impossible for Western Mining seriously to comply with.  They did not and presumably no one has.  Section 170 makes that a crime, subject, fortunately for Western Mining, to a limitation period.  There are other important provisions such as section ‑ ‑ ‑

KIRBY J:   Could you just explain to me what a breach of the provisions of the Act by the respondent ‑ ‑ ‑

MR WALKER:   By failing to notify ‑ ‑ ‑

KIRBY J:   But how does that affect the true interpretation of the Act?

MR WALKER:   That shows that the deeming provision cannot possibly be seen ‑ ‑ ‑

KIRBY J:   Do you say it shows that it is categorised, that the deeming provision is for beneficial purposes ‑ ‑ ‑

MR WALKER:   No, it operates for the purpose for which it was inserted ‑ ‑ ‑

KIRBY J:   For the employment purpose, quasi‑employment purpose?

MR WALKER:   Which happens to be this backup.  The case in hand, your Honour, is the familiar one ‑ ‑ ‑

KIRBY J:   The problem is the Act did not say that ‑ ‑ ‑

MR WALKER:   And this is why ‑ ‑ ‑

KIRBY J:   It would have been easy for the Act to have said, “for the purpose of this division”, “for the purpose of notional employment”, et cetera, et cetera.

MR WALKER:   Yes.  Now, historically, one can see that the reason it does not do that is the temptation was succumbed to of simply using the old words, presumably because they were time‑honoured.  This was, I think, originally section 9 of the 1912 Act.  We did not have all the subdivisions.

McHUGH J:   I wish I had a full copy of the Act.  We have been given a stack of material in this case, most of which just seems to have no relevance whatever to the case, and the one thing we have not got is a complete copy of the Act.

MR WALKER:   No, I am sorry, your Honour.  Your Honour, it is tab 6 that ‑ ‑ ‑

KIRBY J:   Throw yourself on our mercy.

MR WALKER:   I apologise.  Tab 6, section 175, can I point out how old‑fashioned the deeming provision is.  My point is that this is the opportunity for this Court to save deeming provisions in statutes which will become more and more common as this century progresses, namely, statutes which are the subject of accretions, which do mix the drafting styles of different centuries, let alone different decades, and where there may be unintended consequences, to use a legislator’s excuse.  Well, this Court, in our submission, can extend the emphasis on purposive interpretation in this case, were it to take it, so as to make it clear that interpretative provisions including deeming provisions are particularly to be tested against the ramifications which are urged by those pressing a literal, fully ramified application of old provisions to new parts, which obviously were never thought of by the same legislators or draftsmen at the same time.  Probably the draftsmen of 175’s words, as they now stand, in the relevant parts, 1912, were dead at the time that the 1993 amendments were enacted.

Now, your Honours, in section 175(1) you will see that the first thing that is posited is that there is a contractor who employs a worker and that contractor is doing work for a principal – another person, a principal – but then it says that:

both the principal and the contractor are, for the purposes of this Act, deemed to be employers of the worker so employed – 

of course, that is another age speaking.  The contractor is not merely deemed to be the employer.  He is, by the premise of the very subsection, the actual employer.

KIRBY J:   But you will notice in subsection (6) it says “For the purposes of this section”.

MR WALKER:   That is one of the latter day extensions.  That comes from about 50 years later in drafting.  That, of course, means that there can be many more than one deemed employer, which makes even more unlikely that section 160, and requiring the payment of a premium based upon wages, was ever intended to have the deemed employer.  Well, if it is not in 160, which is at the heart of this social scheme, why would it be ‑ ‑ ‑

KIRBY J:   So what you really want the Court to do is to put in “for the purposes of this Act” in dealing with cases of contractors and subcontractors?

MR WALKER:   The expression:

for the purposes of this Act, deemed to be employers of the worker so employed and – 

and the critical “and” – 

are jointly and severally liable to pay any compensation – 

which is the statutory matter.  That, in our submission, should be treated as an hendiadys.  This is the only aspect which, for the purposes of this Act, renders Western Mining an employer.  That then works, particularly when one looks at subsection (2).  This is a joint and several liability in which Western Mining gets an indemnity, and then if I could ask your Honours to look at subsection (3) so as to show the invidiousness of the Full Court’s approach which says that an employer deemed under subsection (1) is a employer for every provision you find from time to time in this Act as multiply amended.  Subsection (3) says that you are:

not liable under this section unless . . . at the time of the occurrence of the disability – 

whatever that means, presumably the accident – 

is directly – 

whatever that means – 

a part or process in the trade or business of the principal.

Then one looks at subsection (7) and one sees that none of these subsections applies, including subsection (1)’s deeming:

Where the disability does not occur – 

presumably the accident or the further damage does not occur ‑ 

in respect of premises – 

et cetera, et cetera.  The notion that one could comply with core provisions like 160, with the criminal sanction of 170, as a deemed employer, is laughable, in our submission, from which it follows that the robust plank of the Full Court’s reasoning, namely that the words “for the purposes of this Act” do their work indifferently ‑ ‑ ‑

McHUGH J:   They do more than that.  They provide a powerful reason in paragraph 122 of the judgment at page 75, do they not, about recovery of the workers’ compensation benefits?

MR WALKER:   I think I am forbidden by the lights to answer your Honour.

McHUGH J:   Yes.  Yes, Mr McCusker.

MR McCUSKER:   May it please your Honours.  First, in relation to my learned friend’s point regarding section 160, he put it to your Honours as if it were beyond debate that it is impossible to comply with the requirements of section 160.  In our submission, it is not impossible.  The fact that it was conceded that it had not been complied with, no doubt because it was not understood that it was necessary to comply, does not mean it is impossible to comply with the requirements of that provision.  It requires a notification and to furnish to the insurance office an estimate of wages, salaries, et cetera, or other remuneration.  You will note that it refers to:

paid to workers employed under an agreement to perform – 

(a)  a specified quantity of work for a specified sum;

(b)  work on piece rates;  or

(c)  work on a bonus or commission system – 

so that there is nothing in that section which renders impossible compliance in the circumstances of a deemed employer.  My learned friend referred to section 86 where it is “expressly provided by this Act” and I put it to your Honours that there must be an express provision.  In our submission, the express provision is the very clear wording “for the purposes of this Act”.  There is no qualification made to that.  My learned friend suggests that as a matter of general ‑ ‑ ‑

KIRBY J:   There is no verbal qualification, but the suggestion is that the Court, giving the legislation a purposive construction, will have regard to the inconvenient consequences that you are put into – and many employers might be put into a position of criminal liability and so on, and that therefore giving the statute a purposive construction, you read it down to mean, for these particular purposes of workers’ compensation benefits you read it more narrowly.

MR McCUSKER:   But there is no necessary criminal consequence flowing from the interpretation placed on “for the purposes of this Act” by the Full Court.

KIRBY J:   What about premiums?  I mean, every employer who ever has a subcontractor is going to have to pay premiums and do other things under the Act as if they were an employer.

MR McCUSKER:   Yes, but there is nothing difficult about that ‑ ‑ ‑

KIRBY J:   Which it is said you had not done.

MR McCUSKER:   We have not done it, or we had not done it, but there is nothing ‑ ‑ ‑

KIRBY J:   It is a rather unfair thing, too.  Here is a worker and, as far as he is concerned, he is just a worker of another contractor and he is not suing you as his employer.  He does not think of himself as your employee.  He does not think of you as his employer, does not give notice, does not seek extension or leave, and now years later this point has dropped on him.  It does not seem very just.

MR McCUSKER:   The plaintiff is a bit schizophrenic in that regard, your Honour, because you will see, if you go to page 2 of the application book, that for the purpose of the Mines Safety and Inspection Act the plaintiff pleaded that he was, for the purpose of that Act:

deemed to be the Defendant’s employee for the purposes of s9 of the Mines Safety & Inspection Act – 

that appears at point 4.

McHUGH J:   Just make this clear to me, Mr McCusker, if your argument is not right, does it follow that the worker in this particular case would be able to obtain damages against you and retain his workers’ compensation benefits against his employer?

MR McCUSKER:   Not both, your Honour, no.

McHUGH J:   How does that come about?

MR McCUSKER:   If the plaintiff were to proceed with the original action and recover, there would have to be an assessment, of course, of the damages recoverable, but there would have to be an offset for the workers’ compensation ‑ ‑ ‑

McHUGH J:   But how does it come about?  I rather read Justice Heenan’s judgment in paragraph 122 as suggesting that, unless your argument succeeded, that would be the effect.

MR McCUSKER:   Justice Heenan says at about point 6 of that page:

In every such situation, the principle enshrined in s 92 of avoiding double recovery of both damages and compensation, will apply.

McHUGH J:   Yes, I know, but if your argument does not succeed, section 92 will not apply, will it?

MR McCUSKER:   No, I do not think it will, your Honour.

McHUGH J:   Well, is that not the point that Justice Heenan is making, that unless 175 applies in the way you argue, then the worker can have his damages against the deemed employer and retain his workers’ compensation benefits against his real employer?

MR McCUSKER:   It depends upon how “for the purposes of this Act” is then read.  I think that is the problem.  This very problem was adverted to by the Full Court of the Supreme Court of New South Wales in the case which is on our list OP Industries, not this precise problem but the problem of complications which arise if the words “for the purpose of this Act” were not treated in the way that this Full Court of Western Australia has also treated it.  In OP Industries it was said at paragraph 24 that:

The construction . . . sought was not only unnecessary in order to achieve the Act’s – 

it is tab 10, your Honours.

McHUGH J:   I think it is 14, is not it?

MR McCUSKER:   It is at page 200, paragraph 24.

McHUGH J:   Tab 14.  What page is it?

MR McCUSKER:   Page 200 of the report.  You will see there that in paragraph 22 the relevant provision is set out which includes the same words:

shall, for the purposes of this Act, be deemed to continue to be the employer of the worker while the worker is working for that other person.

At paragraph 24 the court deals with the proposition advanced here for the applicant and rejects it, saying it is:

The construction . . . was not only unnecessary in order to achieve the Act’s objectives but might well have introduced or left open complications which cl 1 and Sch 1 was clearly intended to avoid.  Such a construction would have been contrary to s 5 of the Act, the plain literal meaning of cl 1 of Sch 1, and the decision of this Court in – 

an earlier case.  Now, we are not suggesting, of course, that this Court cannot simply say that is wrong, too, but there is strong judicial authority in support of the conclusion reached by the Full Court in Western Australia on this point.  It is not necessary in order – going back to the purposive construction – and we accept, of course, the twofold propositions, one is that the Act must be given a purposive construction and indeed a beneficial construction because it is an Act there for the purpose of providing for no fault compensation for employees, but neither of those approaches is defeated by the conclusion that, in this case, that there is a deemed employer for all purposes of this Act.

My learned friend suggests that in some way, although there is nothing at all in any extrinsic material to support this, that Parliament when enacting these later provisions which impose a barrier by way of requiring leave to proceed or to commence action suggested that Parliament simply overlooked or the draftsman overlooked the effect.  With respect, that cannot be assumed in the absence of some reference to extrinsic material.  To the contrary, it must be taken that the effect which the Full Court concluded as the effect of “for the purposes of this Act” was intended by the Parliament.

There is nothing in that result which is contrary to the general purpose of the Act, and that is to provide for no fault compensation for a worker who is injured.  Nor has my learned friend pointed to any error in principle in terms of the approach taken by the court to matters of construction.  Apart from the proposition in terms of the general public importance, that there may be a problem in complying with the requirements of section 160, my learned has really pointed to no other matter which can be said to be of general public importance in the administration of the law in this area.

There is nothing in the applicant’s summary of argument which does other than simply make that as an assertion without any explanation of why that should be said to be so.  As I say, your Honours, section 160 is not, when one analyses it, a section which could not be complied with by those who are deemed employers for the purposes of the Act.  In the same way, for example, as these days, parties who engage subcontractors may be obliged to take out insurance cover for even their workers and so on.  These are different times and those things are now taken as a matter of course. 

The fact that it was not understood, perhaps by this particular defendant at the time, does not do anything to affect the construction of the Act.  They are our submissions, your Honour.

McHUGH J:   Yes, Mr McCusker.  Yes, Mr Walker.

MR WALKER:   Your Honours, paragraph 122 in Justice Heenan’s reasons does not, in our submission, threaten the quite unmeritorious outcome which your Honour Justice McHugh has raised.  I, of course, accept that it would be an intolerable proposition that you could be compensated by statutory compensation and get common law damages without there being the kind of allowance which is a hallmark of all such legislative schemes.

First of all, his Honour does not actually say that in 122.  Second, section 92 of the Act, which your Honours have behind, I think, tab 7, certainly includes provisions for allowances depending whether damages at common law have been recovered against a defendant, so‑called – that would be Western Mining – and how that is to be related to compensation paid by an employer.  So the legislature has attended to that under section 92.

Indeed, one can say of section 92 that very curious tangles are introduced if you start to include within an employer someone who is a deemed employer under section 175, because then it would appear that there will be a mysterious division of the category of defendant, that is, somebody other than an employer, into people who are really not employers and people who are deemed not to be employers.

McHUGH J:   But is the problem not that 92 is dealing with the situation where the employer, deemed or otherwise, pays workers’ compensation and ‑ ‑ ‑

MR WALKER:   Yes, and someone else is sued and there is an arrest before you come to judgment in order to enable ‑ ‑ ‑

McHUGH J:   Is that not 93?  Does not 93 deal with that?

MR WALKER:   Section 93 also deals with the converse position.  Sections 92 and 93 are part of the scheme to ensure that there will not be double recovery.  Your Honours, we handed up section 84AA to your Honours.  That is another one that can be compared with section 160.  Is it really seriously proposed by Western Mining that they are under a statutory obligation to provide to my client the position he held immediately before a certain day or, if that is not available, a position for which he is qualified, et cetera, et cetera?

This is simply not real and, in our submission, it shows that though this may cast some doubt upon the thoroughness with which these accretions to the statute are checked for their consequential knock‑on effects, nonetheless, read purposively, it cannot be that in 175, the old 1912 wording, exhumed in 1970 after a decade’s furlough, has had this effect on all provisions, including this innocent looking leave provision for claims against an employer in damages, a case where obviously there are delicate issues of policy concerning the balance between degrees of disability, the amount of compensation, the election that a worker may have to make in terms of an action against an employee under the law of master and servant.  None of that has anything purposively to do with an action against someone like Western Mining.

In our submission, it is clear from the statute that there are provisions – and 160 is an excellent example.  My friend says it could be easily complied with.  How does my friend propose Western Mining is going to find out the bonuses that are paid to the people who may have been on site for four hours, let alone the invidiousness of making the judgment as to whether what they did on site was something which was directly part or process of their trade or business.

Leave aside the difficulty of that.  Assuming you can judge that, you have somehow got to find out the money attributable to that time.  This, in our submission, is wholly unworkable, on its face, impossible.  No suggestion that there is any power to obtain access to people’s private books.  Section 160, in our submission, is not truly capable of being accepted wholeheartedly by Western Mining as an obligation binding them.

As for 84AA, the reinstatement provision, it is, in our submission, in the nature of a cruel joke on people such as my client to suggest that Western Mining is going to look after them as a deemed employer by giving them a job.  In our submission, it is simply not real.  What that suggests is that this provides an ideal vehicle to examine the particular aspect of purposive interpretation when it intersects with these old or new‑fangled deeming provisions, to ensure that deeming provisions, which in the relevant application here are fictitious after all, are kept within their proper province and do not work these lawyer’s points, which have succeeded in the Full Court against my client in his claim to be compensated for injury.  May it please your Honours.

McHUGH J:   Thank you, Mr Walker.

The language of section 175(1) of the Workers’ Compensation and Rehabilitation Act 1981 is intractable. The duty of courts is to give effect to the purpose of Parliament derived from the language of the statute. It is true that the construction favoured in the Full Court can lead to potential injustice to a deemed employee in certain circumstances. However, the contrary construction urged by the applicant results in consequences that are also unlikely. In these circumstances, the purpose must be derived from the statutory text. The applicant’s construction would, it seems to us, require major surgery on the legislative language.

There is no reasonable prospect that an appeal would succeed.  Accordingly, special leave is refused with costs.

AT 3.14 PM THE MATTER WAS CONCLUDED