Manufacturers Mutual Insurance Limited v Hooper

[1988] HCATrans 172

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S58 of 1988

B e t w e e n -

MANUFACTURERS' MUTUAL INSURANCE

LIMITED

Applicant

and

JOHN EDWIN HOOPER

Respondent

Application for special leave to

appeal

MASON CJ
BRENNAN J

DEANE J

Hooper

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 AUGUST 1988, AT 9.32 AM

Copyright in the High Court of Australia

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MR C.G. GEE, QC:  May it please Your Honours, I appear with

my learned friend, MR J.D. HISLOP, for the applicant.

(instructed by Dexter, Healey & Co)

MR D.F. JACKSON, QC:  May it please the Court, I appear

with my learned friend, MR D.J.S. JENKINS, for

the respondent. (instructed by Michael Rosser & Co)

MASON CJ:	Yes, Mr Gee?
MR GEE:	Your Honours, the application arises from the following

circumstances -

MASON CJ: Mr Gee, we are familiar with the circumstances

in which the application arises and there is
one aspect of it that we should draw to the attention

of counsel. It appears from paragraph 4 of the

affidavit in support of the application. That

is the reference to the Queensland case.

As you know, the Court reserved decision

in the Queensland case. The outcome of that

case may have a significant impact on this application

and what the Court had in mind was that' perhaps

the most convenient course to take in this application

would be to stand it over until a date after

the Court delivers its judgment in the Queensland

case when the parties and the Court would be

able to give attention to any possible implications

that that decision might have for this case?

MR GEE:  Yes, Your Honour. Could I just say two things

which really do not cut across what nas just

fallen from Your Honour but may influence the

course that the Court takes. Firstly, that obviously

the Queensland question involved whether the

Queensland Act embraced indemnity for nervous

shock and leave was given to appeal to this Court

in respect of that question. So, without wishing

to put it too high, prima facie, the corresponding

question for the New South Wales legislation

would appear to be of sufficient importance to

carry- leave. Secondly, having anticipated,

perhaps, what Your Honour has just said, I was

wondering whether the Court might consider an

alternative course: namely, that leave in fact

be granted in this case upon the basis that whilst

the impact of the Queensland case could be helpful

it was unlikely to be determinative of slightly

different language for New South Wales and that

if, contrary to that, it turns out that the Queensland

decision really does cover everything, then leave

should be rescinded?

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Hooper

MASON CJ: Is it not better, really, to leave it open, without

having the Court committed in any way? I speak

from a vast well of ignorance in relation to the Queensland case because I did not sit on

it and therefore I am not in a position to indicate

how the case may fall out as I did not hear the

argument in it.

MR GEE:  Your Honour, with the utmost respect, I do no more

than put an alternative suggestion, especially

as the Queensland case did only consider the

question of whether nervous shock was embraced

in the Queensland indemnity and this case raises
the further, and perhaps different, question of

whether the rescue cases are embraced by the

New South Wales indemnity. So, on what has fallen

from Your Honour, I would really have nothing

further to say.

MASON CJ:	Yes.
MR JACKSON:	May it plase Your Honour, we would prefer,

with respect, for the matter to be heard today

and could I mention, simply, two mattecs which,

in our submission, would militate against putting

the matter over. The first is that the legislation

upon which the policy is based is legislation

which has now been repealed, and that would militate

against special leave in terms of importance.

The second matter is this, and that is that special

leave has already been refused in an earlier
case on which the decision of the Court of Appeal

in this case was based. Your Honour, we would

wish to contend that in the present application,

that whatever might happen to the Queensland

case, it is appropriate for this case not to

be a case for special leave. Your Honours, I

will not take that further at the moment.

The second point I would like to mention

is this: that we would submit it would be appropriate

if the matter is to be heard and if it is to

be heard after the decision in the Queensland

case, it may be appropriate for the Court to

sit as a C~urt of seven.

MASON CJ:	Yes, thank you, Mr Jackson.	Do you want to say
anything in reply, Mr Gee?

MR GEE:  Your Honour, the question of the refusal of leave

in the case to which my learned friend made reference

really, in our respectful submission, only throws

up deeper questions that make it a leave case

but this is not the moment to develop those.

MASON CJ:  What about the Act being repealed?

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Hooper

MR GEE:  Your Honour, the impact of that question will not

affect the, no doubt, very numerous cases at

least in the nervous shock area. Obviously rescue
cases cannot claim frequency but nervous shock

cases certainly can, Your Honour~ and, in our

respectful submission, the matter is important

for a large number of cases.

BRENNAN J:	Are there a large number of cases now pending?
MR GEE:	Yes.
BRENNAN J:	Have you any indication of the order of number

of cases?

MR GEE:  I am sorry, Your Honour, I have no evidence of

that. I would have to take advantage of any

adjournmen 4 if that is what happens, to put that

sort of material before the Court.

MR JACKSON:  Your Honour, we cannot assist on the question

of numbers. We have endeavoured to find something

out but we are not able to indicate one -way or

the other. ·

MR GEE:  I should add something to that, Your Honours, that

this is a point that I plead guilty to not having

double-checked. I am instructed that the form

of policy which is the language that is going

to be the subject of this matter continues under

the new provisions in the same form.

MR JACKSON:  I am sorry, Your Honours, with respect, I do

not want to be up and down but we do not agree

with that proposition. The new Act simply requires

there to be insurance against a statutory

liability which does not include something equivalent

to the liability in question here.

MASON CJ:  Thank you. The Court will stand this matter

over to a date to be fixed.

MR GEE: If Your Honours please.

AT 9. 39 AM THE MATTER WAS ADJOURNED

TO A DATE TO BE FIXED

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Hooper