Kuligowski v Metrobus

[2003] HCATrans 425

[2003] HCATrans 425

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P79 of 2002

B e t w e e n -

MAREK KULIGOWSKI

Applicant

and

METROBUS

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 23 OCTOBER 2003, AT 3.19 PM

Copyright in the High Court of Australia

MR B.L. NUGAWELA:   If it please your Honours, I appear with my learned friend, MR J.J. SHELDRICK, for the applicant.  (instructed by D’Angelo & Partners)

MR G.T.W. TANNIN, SC:   May it please the Court, with MS K.E. McDONALD I appear for the respondent.  (instructed by Crown Solicitor’s Office (WA))

GLEESON CJ:   We thought we might be assisted by hearing from you, first, Mr Tannin.

MR TANNIN:   The grounds, in our respectful submission, deal with an essential point of fact about which the five judges in the Full Court were not in disagreement, that is, the determination of the extent, degree and nature of injury of the applicant.

The applicant, at trial, was effectively exposed as a sham.  He was disbelieved.  There was critical evidence against him.  There was critical evidence that contradicted him.  The issue then became whether or not Blair v Curran, the accepted authority of this case, applied in the context of workers compensation.  There is multiple authorities to that effect.  Then came the further issue in this case, whether, in the context of the Workers’ Compensation and Rehabilitation Act, Blair v Curran could apply in relation to a decision of a review officer.

The majority of the Full Court held, whether it be pursuant to the jurisdiction under section 58 of the Act or pursuant to the jurisdiction under 84, that the review officer’s findings were, in effect, identical to the matters to be decided in the District Court hearing, and that following the authority of McNair and indeed Waddington, which is on the subsequent provisions in section 60 and 62, that issue estoppel applied.

GUMMOW J:   There are a number of grounds in the draft appeal that is proffered against you.  What do you say about 2.1 on 172, which is the issue estoppel point, cutting away the rest of it?

MR TANNIN:   In our submission, in all of the judgments – in the judgment of his Honour Justice Malcolm, for example ‑ ‑ ‑

GUMMOW J:   In other words, suppose we were not all that attracted by the rest of it, but what would you say in opposition to 2.1, being a ground of grant?

MR TANNIN:   That the argument is one that is essentially a matter of fact in the case, that it concerns the construction of a statute about which there is Full Court judgment in this State, relied upon ‑ ‑ ‑

GUMMOW J:   Is it these words “final and conclusive” in section 84ZN?

MR TANNIN:   Those words, as we have indicated, were removed merely because there was a change in the appellate scheme.  The older Act from which they came gave a right of appeal, in effect, to the Full Court.  We changed the appellate scheme so that there was an appeal in relation to a matter of law from a review officer to the compensation magistrate.

GLEESON CJ:   If this is only a dispute about a factual question, why was there a specially constituted Full Court?

MR TANNIN:   That was made on the request of the appellant, on the basis that its argument would require the court to overrule the earlier decision of McNair, but that was not in fact a ground of appeal, though the matter was so argued.

GLEESON CJ:   Am I right in thinking that in the Full Court of five, two members of the Full Court dissented ‑ ‑ ‑

MR TANNIN:   Yes.

GLEESON CJ:   ‑ ‑ ‑ declining to follow an earlier decision, being McNair, and one of the majority indicated that he thought McNair was probably wrong but he was bound to follow it?

MR TANNIN:   Yes.

GLEESON CJ:   That does sound as though it is worth a little attention, does it not?

MR TANNIN:   That sounds a division, of course.  In our submission, though, each of the five justices in the Full Court, at pages 111, 147, 142 and 162 agreed on the critical question of fact in relation to the findings about the applicant’s injuries.  The only point was whether the determination by the review officer was attended with finality for the purposes of Blair v Curran.

The argument, indeed, before the Full Court, in the judgment of Chief Justice Malcolm and Justice Templeman, there is reference to the nature of the jurisdiction exercised.  Justice Malcolm determined that section 58 was being applied, because the parties had agreed, in effect, to that procedure.  Justice Templeman took the view that in fact it was a

review under section 87.  Whatever be the correct answer, the majority determined that there was a proper and final determination of the issues after a proper hearing.

The minority judgments informed, particularly in the policy area in the judgment of Justice Wallwork, was a reference to the beneficial quality of the legislation, the need to interpret it in such a way as to allow the second matter.  Our argument is that in relation to this, the legislation was designed by imposing this gateway to civil law claims to reduce the number of claims, patently for fiscal reasons.

Now, the construction that we urge upon this matter and the construction that we urged before the Full Court promotes that system.  It is contrary to policy that persons should have a trial, have the matter determined in evidence against them and then seek to re‑agitate the very same issues in another court.  They are my submissions.

GLEESON CJ:   Mr Nugawella, we are sympathetic to your application for special leave, but we are not sympathetic to some of your grounds.  Why should we not limit special leave to the ground contained in 2.1 of your draft notice of appeal?  Is that not the nub of it?

MR NUGAWELLA:   Yes.  I was going to say at the outset, your Honours, that regardless of the statutory source of the jurisdiction of the review officer’s material decision, be it section 58 or section 60 or Part 3A or consent jurisdiction, the real issue is the question of finality as a matter of statutory construction as undertaken by her Honour Justice McLure. 

Having said that, for the purposes of this special leave application, however, it did occur to me earlier today, your Honour the Chief Justice, that if we are right –  for instance, if special leave were to be granted and, en passant, the High Court were to look at the statutory source of the jurisdiction of the review officer and if it transpires that there was absolutely no statutory basis for that decision, then the whole decision is a nullity and the whole question of issue estoppel that agitated the Full Court would fall away.

Now, that counts against me of course in this matter attracting or being a suitable vehicle for the attraction of the grant of special leave.  To that extent, we would be prepared to abandon those grounds and all the arguments that go to this issue of the source of the statutory jurisdiction.

GUMMOW J:   That is right.  You have reached high noon, I think.

MR NUGAWELLA:   Very well, your Honour.

GLEESON CJ:   In this matter there will be a grant of special leave to appeal limited to ground 2.1 in the draft notice of appeal, commencing on page 174 of the application book.

AT 3.33 PM THE MATTER WAS CONCLUDED