Mericka v Employers Mutual/Workcover Corporation & Anor

[2015] HCATrans 64

[2015] HCATrans 064

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A20 of 2014

B e t w e e n -

ALEXANDER DAVID MERICKA

Applicant

and

EMPLOYERS MUTUAL/WORKCOVER CORPORATION

First Respondent

WORKER’S COMPENSATION TRIBUNAL

Second Respondent

Application for special leave to appeal

BELL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON FRIDAY, 13 MARCH 2015, AT 9.58 AM

Copyright in the High Court of Australia

MR S.C. CHURCHES:   If it please the Court, I appear for the applicant.  (instructed by Michael Hegarty & Associates)

MR M.C. LIVESEY, QC:   If the Court pleases, I appear with MR B.J. DOYLE for the first respondent.  (instructed by DW Fox Tucker Lawyers)

BELL J:   Yes, Mr Churches.

MR CHURCHES:   A grant of special leave is appropriate in this matter to determine whether the word “agreement” in section 42 of the Workers Rehabilitation and Compensation Act is to be understood as meaning a common law contract, as the majority below held, or whether “agreement” is to be understood in its statutory context pursuant to the canons of construction.  The applicant contends for that latter approach.

BELL J:   Mr Churches, this seems to be yet another iteration of the special leave point.  Does it bear some relation to either the grounds in the draft notice or the special leave question identified in the summary of argument?

MR CHURCHES:   Yes, your Honour, because quite shortly we will come to the critical concept, the “unless” word, because the meaning of “agreement”, in our submission, will be determined in the context of section 42 with particular reference to the “unless” phrase that we referred to at length in the written submissions.

KEANE J:   So the point you are proposing that the Court take up involves the construction of the verba ipsissima of the South Australian statute?

MR CHURCHES:   In our submission, your Honour, it would reflect the importance of dealing with phrases such as what we have called the “unless” phrase in our written submissions, which has of course a more general application.  Indeed, working through the context created by the “unless” phrase would reflect the statutory interpretative issues that go to determining the meaning of a word such as “agreement”.

In our submission, it was incorrect for the majority to assume that “agreement” was a common law contract when in fact it was a word used in a statutory context, that context particularly being created by a phrase that – I am wary of using the word “mandatory”, but which, as Chief Justice Spigelman showed in the Chase Oyster Bar Case, does create a mandatory environment of matters that are to be attended to.

So, to treat the agreement that the worker appeared to signify assent to without having gone through the statutory processes set out in section 42(2), which were said to be requiring attention, that there could not be an agreement unless these matters were attended to, is incorrect to say, well, this is just a contract; it can be treated as executed later when the worker receives the advice after he has signified assent.  In our submission, the context of this statute, particularly section 42, goes to the requirement that the worker receive this advice before there is an entering into agreement.

BELL J:   It was accepted, was it not, that the worker had received the advice from his solicitor prior to the agreement coming into effect when the claims officer from WorkCover on 12 May executed the necessary paperwork, in light of the material that had been sent to WorkCover following the solicitor’s advice?

MR CHURCHES:   Yes, your Honour.  That raises immediately the issue of mindset referred to in the Chief Justice’s judgment and also dealt with at length by Justice Peek at pages 302 to 303 of the application book, the problem there being that, on our submission, your Honours, there is then no issue about whether there is a mindset created in a worker by entering an agreement and then later receiving the advice prescribed by statute to be received in advance.  There is no question about mindset if there is adherence to the statutory intention which, in our submission, is quite plainly ‑ ‑ ‑

BELL J:   Well, now, Mr Churches, I think Justice Peek considered that it was necessary that there be some evidence of the worker’s signification of agreement in addition to the signature on the document that predated the advice.  Putting to one side the correctness or otherwise of that analysis, the fact is, as I understand it, the respondent accepts that on the remitter, as Justice Peek indicated, that matter can be ventilated.

MR CHURCHES:   In our submission, your Honour, there is no requirement that it be ventilated.  We noted in our written submissions that one of the industrial judges has already noted that the matter should proceed back to facts to be obtained without reference to these sorts of ancillary and antecedent matters.  We have no guarantee that it will be dealt with in further finding of fact.

BELL J:   Mr Churches, the proceedings have been remitted to be dealt with before a member of the Tribunal who has not previously dealt with the matter, is that so?

MR CHURCHES:   I understand that is correct, yes.

BELL J:   Yes, in order to deal with a number of matters that, in light of the initial determination, had not been addressed, and amongst those matters it is accepted by WorkCover that the question of the applicant’s concurrence or signification of the agreement post the receipt of the solicitor’s advice can be canvassed.  Why would we grant special leave in those circumstances?

MR CHURCHES:   Because, your Honour, in our submission, this matter can be resolved without any - a determination by this Court will resolve the matter so that it does not have to go on through this further finding of fact.  Further, your Honour, as to the importance of this matter to the work of the Court on the statutory interpretation, I note that we have given one page of Hansard in the application book.  That is at page 324 of the book.  I raise that, your Honours, because it goes to illustrate just how the intention of the legislation has been subverted by what the courts below have done here.  We note that on the left‑hand column of page 324, the Honourable Mr Trevor Griffin, the then Attorney‑General – at about line 39, well down the left‑hand column, a sentence that reads:

I will deal with the specific issues shortly, but one has to recognise that under our amendment an agreement for the redemption of a liability cannot be made unless a number of prerequisites or preconditions are satisfied.  One is that the worker has received competent professional advice about the consequences of the redemption –

and so forth.  Then on the right‑hand column ‑ ‑ ‑

BELL J:   Mr Churches, sorry to interrupt you; I am just not quite sure where taking us to this extrinsic material is leading on this application, but it is not in issue, in the way the majority determined the matter, that the worker had received advice before the agreement came into effect.

MR CHURCHES:   That is so, your Honour.

BELL J:   I am sorry, Mr Churches, it seems then a little beside the point to take us to the statements that Mr Griffin made in the House respecting the need for that to occur.

MR CHURCHES:   Indeed, your Honour, but what I am saying is that the words “prerequisites” and “preconditions” go to advice prior to entering by the worker into his side of the agreement.  In our submission, subsection (2) of section 42 provides in its first four paragraphs matters which are to be attended to by the two parties respectively prior to there being agreement ‑ ‑ ‑

BELL J:   Mr Churches, I think below you accepted that there is no requirement for a written agreement.

MR CHURCHES:   That is correct, your Honour.

BELL J:   So the argument cannot be that before signing a document, it is necessary to have the advice.  The argument must be that before the agreement becomes operative, it is necessary as a condition of the agreement being effective that the worker has had advice.

MR CHURCHES:   Your Honour, we submit it works in another way; that neither party, but in particular the worker, cannot agree to enter into this matter until they have received the advice.  They have been, in our submission, railroaded into this agreement, then told later – if I could put it another way, your Honour.

On the Chief Justice’s reasoning that the contract – he says it is a common law contract – it can be waiting execution, if I can paraphrase it in this way, which will be performed by the receipt of advice after there has been offer by the insurer, acceptance by the worker and then later there has been advice received, and that advice received will, on the Chief Justice’s reasoning, work to execute the contract.  In our submission, what would the case be if the worker received advice that he should not have entered into the contract?

On the Chief Justice’s reasoning, there is a springing of the contract.  It has occurred; there we have an agreement, apparently.  In our submission, this statute works ‑ ‑ ‑

BELL J:   Mr Churches, I think that may be to misread the Chief Justice’s reasons.

MR CHURCHES:   Well, in our submission, that is the end of that line of reasoning.  In our submission, your Honours, the intention of this statute is that workers receive their advice – there are two forms of advice – prior to the process of negotiation to get to agreement.  That is the reason we ran the extrinsic materials in, because, in our submission, that goes to elucidating the intention of the legislation, as does a lot of the material in section 42 which talks about, for example, the insurer paying for the cost of the advice to be obtained by the worker.

It all reflects a statute which has a beneficial intention to preserve the rights of workers who have been injured in the workplace, and section 42 is replete with that sense of beneficial intention which in the cases we have set out in the written submissions such as Caltex Oil v Best, Bird’s Case – these are all cases about beneficial intention.

I know that the Court is wary of saying that there should be a reading willy-nilly in favour of one side in such cases, but there is clear case law

which we set out in the written submissions that, where there is beneficial legislation at stake and where there are a variety of meanings that may be applied - in our submission, “agreement” here is open to more than one meaning - then the beneficial meaning should be given to the word, and here the word “agreement” does not just mean a contract which can be executed later by the application of advice, but that the legislation intended that the worker receive that advice prior to entering into the negotiations.

BELL J:   Thank you, Mr Churches.

No question of general importance is raised by the application and we are of the opinion that the interests of justice are not engaged in circumstances in which the proceeding has been remitted to the Worker’s Compensation Tribunal, and it is accepted that the issue raised in the reasons of Justice Peek at paragraphs 118 and 119 may be determined by that body.  Special leave is refused.  Can you resist an order for costs?

MR CHURCHES:   No, your Honour.

BELL J:   Yes; with costs.

The Court will now adjourn to reconstitute.

AT 10.13 AM THE MATTER WAS CONCLUDED