Marsden v Unimin Australia Ltd; Price v Resolute Resources

[2005] HCATrans 569

[2005] HCATrans 569

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P57 of 2004

B e t w e e n -

ALAN DAVID MARSDEN

Applicant

and

UNIMIN AUSTRALIA LIMITED

Respondent

Office of the Registry
  Perth  No P58 of 2004

B e t w e e n -

JOHN IVOR PRICE

Applicant

and

RESOLUTE RESOURCES LIMITED

Respondent

Applications for special leave to appeal

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 5 AUGUST 2005, AT 12.14 PM

Copyright in the High Court of Australia

__________________

MR J.R. CRIDDLE:   If the Court pleases, I appear for the applicant in each of the two applications.  (instructed by Bradford & Co)

MR M.J. McCUSKER, QC:   If the Court pleases, I appear in the matter of Marsden with MR H.M. O’SULLIVAN and in the matter of Price with MS S.E. HARRISON.  (instructed by Srdarov Richards Burton and Mallesons Stephen Jaques)

HAYNE J:   Is there any reason not to deal with the two matters together, Mr Criddle?

MR CRIDDLE:   No, your Honour, there is no reason why they should not be dealt with together.

HAYNE J:   Yes.  Go ahead.

MR CRIDDLE:   Your Honours, the two matters that are before you this morning deal with the construction of section 175 of the Workers’ Compensation Act in Western Australia.  That Act, in its current form, or similar form, has been around for about 100 years and derives from the English workers’ compensation legislation.  The

applications for special leave arise out of the manner in which the judges at first instance and the majority of the Full Court dealt with the question of whether section 175(1) applied to the circumstances of each of those cases.  If I could quickly take your Honours to the ‑ ‑ ‑

HAYNE J:   The basic arrangement is a labour hire company is injected into the factual circumstances.  That is the basic fact, is it not?

MR CRIDDLE:   It is, your Honour.  The labourers from the labour hire company, in our submission, are injected into the second company.

HAYNE J:   I understand that you say section 175(1) in the form described applies to these circumstances, but am I right in understanding that the legislature has looked at the problem again?

MR CRIDDLE:   Your Honour, the legislature has looked at the effect of being a deemed employer under section 175 and amendments have been made which will come into force in November of this year which mean that the constraints on access to common law rights will no longer be available to deemed employers under section 175.  To that extent there are amendments to the legislation but not to this section itself.

HAYNE J:   But from that date in November this year persons in the position of Mr Marsden and Mr Price would say, would they, that they would achieve a result different from the result of their litigation as it now stands after the Full Court decision?

MR CRIDDLE:   That is correct, your Honour.  If the legislation had have been in place at the time of their accident this would not have been a problem.

HAYNE J:   And there is a legislative choice made to bring these new arrangements into effect on the date in November that you have identified?

MR CRIDDLE:   Yes, your Honour, that is correct.

HAYNE J:   Why should we take it on to consider whether the Full Court was right in the construction it made of section 175(1), given the legislative position that I have identified?  I understand it is of importance to both Mr Price and Mr Marsden.  That, of course, I well understand.  Beyond that, why should we take it on?

MR CRIDDLE:   Your Honour, the applicant’s response to that is that the legislation remains in identical form, notwithstanding the amendments.  So, section 175 has not been changed at all.  It is whether a deemed employer can obtain the benefit of that that has been changed by the proposed legislation.  The reason why it remains important is that there are a number of cases over the past period of time involving labour hire firms which are still within the system.  That is one reason.

The second reason why it remains important is that, as I say, the legislation is unaltered.  There is similar legislation in other States in Australia and it is submitted that if the Full Court or the majority of the Full Court decision is wrong it would stand as a precedent which is inappropriate, in the circumstances.

HAYNE J:   What other States do you say have like provisions that might be affected by the Full Court’s decision in this matter?

MR CRIDDLE: Your Honour, there has been a book of materials that has been filed. Section 20 of the Workers Compensation Act (NSW) has similar legislation. That is in relation to the issue of whether work is executed by or under a contractor and that is the real issue in each of these two cases. It is what is an appropriate determination of whether work was executed by or under the contractor, and that expression is found in section 20 of the New South Wales Act, section 10A of the Accident Compensation Act (Vic), section 29 of the Workers Compensation Act (NSW) and section 13 of the Workers Compensation Act (ACT).

HAYNE J:   Now, do any of those jurisdictions deal with the labour hire problem that generates the litigation with which we are concerned here?

MR CRIDDLE:   Your Honour, I am not certain of the answer to that question.  The answer is I am not able to assist your Honour there, but, clearly, the wording of the section which is appropriate and has been dealt with by the Full Court is identical in each of those pieces of legislation.  So the entry point as to whether that legislation is effective or not is the same for each of the jurisdictions.

HAYNE J:   Yes.

MR CRIDDLE:   On the issue of the amendment, the other matters that the applicants consider important is the inappropriate use of precedent by the Full Court in this matter in that they have found themselves bound by the obiter comments of Mr Justice Heenan in the matter of Hewitt v Benale.  The position in relation to both applicants is that at first instance neither judge dealt with the issue of whether the deemed employer or the claim by the deemed employer came within the requirements of section 175(1).

There was simply – in relation to the matter of Marsden his Honour simply said the case of Hewitt v Benale would seem to provide a complete answer to the question of whether section 175(1) applies.  There is no reasoning by the trial judge in that matter as to the meaning of the execution of work by or under the contractor.  That is to be found nowhere in the decision.  Similarly, in relation to Price there was simply no assessment by the trial judge of whether there was a contract for execution of work by or under the contractor.

In the Full Court the majority simply said, “We are bound by the dicta of his Honour Mr Justice Heenan in Hewitt v Benale” and that dicta was simply to the effect that labour hire contracts are caught by the section.  There was no analysis by Mr Justice Heenan in Hewitt v Benale of section 175(1) and the entry requirements.  There was certainly no discussion of whether there was a contract for the execution of work by or under the contractor.

HAYNE J:   Is that being entirely fair to their Honours in the matter of Marsden where we find at pages 30 to 35 an analysis of Hewitt v Benale, what is said there and the correctness of the analysis made?

MR CRIDDLE:   Your Honour, in relation to that, it is not disputed that the analysis in Hewitt v Benale is correct and that analysis went to whether a deemed employer under section 175 of the Act was entitled to the benefits of the constraints against the award of common law damages.  That certainly was never in issue before the Full Court and it was made quite clear at the commencement of the appeal that that was never in issue.

Their Honours have spent some considerable time reaffirming that position.  The position was unassailable because the matter went on a special leave point to the High Court on the matter of Koljibabic and those papers are also before you this morning.  Quite clearly, the result of that was the Full Court was not interested in overturning the Hewitt v Benale decision on the applicability of the constraints on the awarded damages to deemed employers.  That was never the issue in these two cases.  The issue was whether in the circumstances of each particular case each defendant was entitled to the claim that they were deemed employers under section 175.

HAYNE J:   In Koljibabic Justice McHugh, speaking for the Court, expressed the view that the contrary construction of section 175 urged in Koljibabic would result in consequences that are unlikely and that the applicant’s construction would require major surgery and, therefore, disposed of the application on the basis that there was no reasonable prospect – not insufficient prospects but no reasonable prospect.  In effect, are you inviting us to reach an alternative view of the construction of 175?

MR CRIDDLE:   No, certainly not, your Honour.  The issue in both Hewitt v Benale and Koljibabic was whether the use of the words “for the purposes of this Act” in section 175 meant that being a deemed employer gave that person rights under the rest of the Act.  The workers in those cases made the submission that section 175 was limited to compensation alone.  The applicants in these two cases are certainly not asking to resurrect that argument.  What we are simply saying in this case is that – and if I might add, in both of those cases it was an agreed fact that section 175 deemed the employers to be deemed employers under that section and that is where the distinction lies.

In these two cases what the applicants are saying is, “No, you are not deemed employers.  You are not deemed employers because there is not a contract for the execution of work by or under the contractor”.  That applies in both cases.  We have the findings of the judges at first instance who simply do not deal with the point and then we have the Full Court, the majority of the Full Court simply saying, “We are bound by the decision of ‑ ‑ ‑

CALLINAN J:   What about paragraphs 41 and 42 on page 40 in Marsden?  Is that not a consideration of the construction of 175 and its application to the facts of this case?

MR CRIDDLE:   With respect, your Honour, that statement and that effect is the ratio of the entire decision.  It is reduced to one paragraph.  That follows upon the comments that the majority considered themselves bound by the decision of Hewitt v Benale.

CALLINAN J:   I know that but it is also, it seems to me, an independent consideration of it, a brief one, but nonetheless an independent consideration of it.

MR CRIDDLE:   With respect, your Honour, all it says is that it is because we say it is.  There is no rationale behind the decision and if I might make the comment ‑ ‑ ‑

HAYNE J:   There comes a point with any point of construction where you have to get to the end and the criticism you make of it is then available.  It is because you say it is.

MR CRIDDLE:   With respect, your Honour, they got to the end before they even considered it and they got to the end on an incorrect basis and if I could just draw your Honours’ attention to the papers that have been provided to you.  The matter of Marsden has been the subject of discussion in the Full Court since the decisions have been handed down.  If I could take you to pages 120 onwards in the parties’ book of materials in the Price matter.  The Marsden application was the subject of comment by ‑ ‑ ‑

HAYNE J:   What, in the course of argument?

MR CRIDDLE:   Yes, in the course of argument, and the Full Court ‑ ‑ ‑

HAYNE J:   There are great dangers about taking what judges say in the course of argument as representing final views, I would have thought.

MR CRIDDLE:   It certainly does not, your Honour, but during the course of argument the Chairman of the Appeals Court in Western Australia expressed the view that he could not understand the rationale behind the decision.  The other two justices were confused by the rationale and there was a statement that the Full Court would not follow a decision if it considered it was wrong.  So, there is certainly some doubt about the validity of the Marsden and Price decisions within this jurisdiction.  Since the matter was heard – I am just wondering if that is my time for both appeals or ‑ ‑ ‑

HAYNE J:   Yellow light, go on, Mr Criddle.

MR CRIDDLE:   Thank you, your Honour.  Since the original appeal was heard, there has been a judgment of a single judge of the District Court which is contrary to the view that was expressed by the majority and it simply looks at the section and says the natural and ordinary meaning given to the words in the section are such that the labour hire contract in that situation was not caught by section 175 of the Act.  That was the matter that was a subject of appeal and the comments by the appeal court that I have referred you to. 

There are also comments by one of the justices that the interpretation that the majority placed on the section was torturing the natural words of the section.  So there must be, in my submission, severe doubt about whether the decision itself is correct.  It obviously has significant effects for both of these plaintiffs and as I say, it has significant effects for persons in the same position as these plaintiffs who have injuries up until November of this year.

Your Honour, the only other matter that I would raise is that, in my submission, there is a special leave point in relation to the interpretation of a statute which has arisen out of the way these cases have got to the point that they have got.  We have the two judges at first instance who simply did not consider the sections at all, or the wordings of the sections but simply made the comment, “Well look, we are bound by this generic comment by Mr Justice Heenan in Hewitt v Benale”.  We then had the Full Court saying, “Yes, we are bound by Hewitt v Benale on an obiter matter” whereas we have Acting Justice Wallwork in his dissenting judgment who actually does analyse the issues and comes to the conclusion that in both cases the

contracts are certainly not for the execution of work by or under the contractor.  The applicants in both cases would commend his Honour Mr Justice Wallwork’s reasons to your Honours.

Your Honours, if the position is that you consider that the proposed amendments do have an effect on whether special leave should be granted, the applicants in both cases would seek that the High Court exercise its visitorial jurisdiction in these matters.  The reason for that is that both applicants have been through the court process where they were required to establish negligence by virtue of the defences that were run.  They lost out on a technicality and they will now, ultimately, lose out if the decision of the majority of the Full Court is wrong, for an inappropriate reason and that is the incorrect following of precedent.  If your Honours please, they are my submissions.

HAYNE J:   Thank you, Mr Criddle.  Mr McCusker, we need not trouble you in either matter.

In each of these applications the applicant, if granted special leave to appeal, would contend that the Workers’ Compensation and Rehabilitation Act 1981 (WA) on its proper construction did not preclude him from claiming damages for negligently inflicted bodily injury from a company which had engaged his employer, a labour hire company, to provide labour.

In the matter of Price, the applicant would seek also to contend that the primary judge erred in finding the relevant facts.  The Act has since been renamed and further, was amended in 2004 with the effect that from November 2005 the Act will, so it is submitted, not preclude actions of the kind brought by the present applicants. 

In our opinion, if leave were granted, no question of general application would fall for decision, only questions of the proper construction of the particular provisions of the Act.  Even if it were to be accepted that the questions of construction sought to be agitated may be open to debate, the construction adopted in the courts below was open and given that the legislation has since been amended it would not be in the interests of justice, in either the particular cases or more generally, to grant special leave to agitate those questions of construction.

In the matter of Price the factual arguments advanced tender no question suitable to a grant of special leave. 

In each matter special leave is refused with costs.

AT 12.38 PM THE MATTERS WERE CONCLUDED