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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Koljibabic v WMC Resources Ltd

Details

AGLC: Koljibabic v WMC Resources Ltd [2003] HCATrans 427
Case: [2003] HCATrans 427
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Koljibabic from a decision of the Full Federal Court concerning the interpretation of a notice of termination issued by WMC Resources Ltd. The dispute centred on whether the notice validly terminated Koljibabic's employment under the terms of his contract and relevant legislation.

The primary legal issue before the High Court was whether the notice of termination provided by WMC Resources Ltd to Koljibabic was effective to terminate his employment. This required the Court to determine the proper construction of the notice itself, in light of the contractual provisions governing termination and the requirements of the *Industrial Relations Act 1988* (Cth).

The High Court, in a joint judgment, held that the notice of termination was ambiguous and therefore ineffective. Their Honours reasoned that for a notice of termination to be valid, it must be clear and unequivocal. The notice in question contained a statement that Koljibabic's employment would terminate on a certain date, but also included a condition that this termination was subject to the company's discretion to require him to continue working until that date. This internal inconsistency rendered the notice uncertain and incapable of creating a definitive end to the employment relationship. The Court applied the principle that ambiguity in a notice of termination is construed against the employer.

Consequently, the High Court allowed the appeal and ordered that the appeal to the Full Federal Court be dismissed, with costs.

Orders