MacDonald v L v Dohnt & Co Pty Ltd

[2015] HCATrans 65

[2015] HCATrans 065

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P34 of 2014

B e t w e e n -

OWEN JOHN MACDONALD

Applicant

and

L V DOHNT & CO PTY LTD

Respondent

Application for special leave to appeal

GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON FRIDAY, 13 MARCH 2015, AT 11.03 AM

Copyright in the High Court of Australia

MR J.A. THOMSON, SC:   May it please the Court, with MR E.M. HEENAN, I appear for the applicant.  (instructed by Haynes Robinson Barristers & Solicitors)

MR D.R. CLYNE:   May it please the Court, I appear for the respondent.  (instructed by CCS Insurance Law)

GAGELER J:   Thank you.  Yes, Mr Thomson.

MR THOMSON:   The case raises a question about the proper approach to interpreting the statutory phrase “to notify”, and whether compliance with provisions deeming service in a general way is sufficient to satisfy an obligation to notify.  The proper approach to interpretation raises ‑ ‑ ‑

KEANE J:   Now, Mr Thomson, this question arises in the context of the Western Australian statute.

MR THOMSON:   Yes.

KEANE J:   It is the content – the operation, the application of the phrase “to notify” is governed by that context, is it not?

MR THOMSON:   Yes, although the points that we would make about that are the provision is one that applies very widely throughout Western Australia, so it is a matter of some importance to workers and injured workers in this State, as well as that the obligation to notify is often used in statutory language and the particular case that we rely upon, Garratt’s Case, is one that has arisen in a federal context in relation to social security benefits so that the phrase “to notify” and how it may operate in relation to general service provisions which apply throughout Australia is one of general interest.  So, while it arises in a context of Western Australian legislation, the point is broader than that, we would say.  But, as well, we would say that it is a point which applies to every injured worker in WA.

The proper approach to the interpretation of the question of how to see what “to notify” means depends upon whether there is an intention to exclude the operation of the deeming effect of the service provisions.  In Garratt’s Case, Justice Gummow referred to a special sense in which a provision may manifest an intention to exclude the effect of the general service provisions, such as sections 75 and 76 in this case.  The special sense that Justice Gummow referred to was approved by the Full Federal Court – including Justice French as he then was – in O’Connell’s Case.  In particular, what it appears to amount to is that the obligation of notification may, in a certain context, be there for the protection of a particular substantive right and if that is so, then that is a sufficient basis to infer an intention to exclude the operation of the general deeming provisions which might otherwise apply to the provision of notice.

GAGELER J:   Mr Thomson, what is it precisely about the particular context of this statute that displaces the ordinary operation of the Interpretation Act?

MR THOMSON:   The provision in this particular case arises in a context where the legislature has provided that the right to retain – to claim common law damages is one that is limited to making a claim within the space of a year.  It has provided specifically that the employer has to give a notice six months before the end of that period to warn the worker that his right is about to be lost.  Then the legislature has provided that the worker may make an election.

The context of an election implies that the worker has an understanding of the two different sets of rights that the worker may exercise.  In the context, then, of a particular provision which is designed to provide a warning, and in the context of the legislature having used the word “election”, implying that what is in issue is the choice, the knowing choice, between two sets of rights, we would say that that context demonstrates an intention to use the words “to notify” in their ordinary sense and to exclude the operation of the extended sense of the deeming provisions in the interpretation legislation.

GAGELER J:   Now, the date for election arises simply by operation of law, does it not?  It does not turn on the giving of the notice.

MR THOMSON:   That is correct, hence the need for a warning to the worker, and that is the very reason why there is a notification provision.  So, section 93O of the Workers’ Compensation Act provides a long lead time for the worker to have a notice in order to make a proper election.  So, the effect of the decision of the Court of Appeal is that a worker may have no notice in actuality, according to the ordinary sense of the term “to notify” and yet have lost the substantive right to retain their common law damages.  It is the same in a broad sense as the protective function that the provisions in Garratt’s Case had.

In that case, the question was whether the substantive right of the applicant, or the person who was seeking to obtain social security benefits, was affected by not having had notice.  It arose in a context where if there had been no proper notice then there could be backdating of social security benefits to a point where they had stopped, but if there had been proper notice then the backdating could only occur to a point at the time that the notice had been given.

In that case, Justice Gummow in Garratt’s Case and, similarly, the Full Federal Court in O’Connell’s Case held that there was a manifest intention to protect substantive rights, that the notice therefore should be understood as a notice which the person was actually aware of and, in those circumstances, the special sense of legislative intention to exclude the operation of general deeming provisions was manifested and, really, that is exactly this case.

KEANE J:   Does this need for actual notice operate as well in a case where a worker simply goes bush and is not contactable?

MR THOMSON:   Well, if that were the case there would need to be an application of an extension of time of the termination day, and as his Honour Justice Gageler mentioned, that arises by operation of law.  If there was a failure to comply with the giving of actual notice because somebody had gone bush and made themselves uncontactable, then we would suggest that that would be a very relevant consideration against the exercise of the discretion to extend the termination – sorry, yes, to extend the termination day.  So, in a general sense, the point that we raise is a point that turns upon understanding the special sense which Justice Gummow referred to in Garratt’s Case.

It is a point which arises in relation to a term “to notify” which applies in many statutes.  It arises in a case which has particular significance throughout Western Australia.  It also arises, having regard to the general interpretation provisions which apply throughout Australia, so that the cases of some public importance for all of those reasons and it is an opportunity for the Court to consider the principle out of Garratt’s Case, and approved by the Full Federal Court in O’Connell’s Case.

GAGELER J:   Yes.  Thank you, Mr Thomson.  Mr Clyne, we do not need to hear from you.

This case turns entirely on the construction of a statutory provision unique to Western Australia.  We are not persuaded that it raises a question of principle suitable for the determination of this Court.  Special leave will be refused.  Are costs sought?

MR CLYNE:   Yes, your Honour.

GAGELER J:   Special leave will be refused with costs.

AT 11.12 AM THE MATTER WAS CONCLUDED