Minister for Education v Klein
[2005] WASCA 185 (S)
•27 SEPTEMBER 2005
MINISTER FOR EDUCATION -v- KLEIN [2005] WASCA 185 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 185 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | FUL:114/2004 | 14 JUNE & 17 OCTOBER 2005 | |
| Coram: | STEYTLER P WHEELER JA PULLIN JA | 27/09/05 | |
| 18/11/05 | |||
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | MINISTER FOR EDUCATION ALAN DAVID JOHN KLEIN |
Catchwords: | Practice and procedure Application to reopen appeal Where no submissions made by respondent on crucial issue Where supplementary submissions on issue considered |
Legislation: | Workers' Compensation and Injury Management Act 1981 (WA), s 6, s 175, s 175(1), s 175(3) |
Case References: | Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 Clay v Clay (2001) 202 CLR 410 Commissioner of Taxation v Comber (1986) 10 FCR 88 De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207 In re Harrison's Share Under a Settlement [1955] Ch 260 McAdam v Robertson (1999) 73 SASR 360 Pantorno v The Queen (1989) 166 CLR 466 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 State Rail Authority of NSW v Codelfa Construction Pty Ltd (No 2) (1982) 150 CLR 29 Wentworth v Woollahra Municipal Council (No 2) (1982) 149 CLR 672 Hewitt v Benale Pty Ltd (2002) 27 WAR 91 Muller v Dalgety & Co Ltd (1909) 9 CLR 693 Stambulich v Ekamper [2002] WASCA 212 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MINISTER FOR EDUCATION -v- KLEIN [2005] WASCA 185 (S) CORAM : STEYTLER P
- WHEELER JA
PULLIN JA
DECISION : 18 NOVEMBER 2005 FILE NO/S : FUL 114 of 2004 BETWEEN : MINISTER FOR EDUCATION
- Appellant
AND
ALAN DAVID JOHN KLEIN
Respondent
Catchwords:
Practice and procedure - Application to reopen appeal - Where no submissions made by respondent on crucial issue - Where supplementary submissions on issue considered
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA), s 6, s 175, s 175(1), s 175(3)
(Page 2)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellant : Mr D R Clyne
Respondent : Mr C P Shanahan SC
Solicitors:
Appellant : Blake Dawson Waldron
Respondent : Butcher Paull & Calder
Case(s) referred to in judgment(s):
Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300
Clay v Clay (2001) 202 CLR 410
Commissioner of Taxation v Comber (1986) 10 FCR 88
De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207
In re Harrison's Share Under a Settlement [1955] Ch 260
McAdam v Robertson (1999) 73 SASR 360
Pantorno v The Queen (1989) 166 CLR 466
Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208
Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256
State Rail Authority of NSW v Codelfa Construction Pty Ltd (No 2) (1982) 150 CLR 29
Wentworth v Woollahra Municipal Council (No 2) (1982) 149 CLR 672
Case(s) also cited:
Hewitt v Benale Pty Ltd (2002) 27 WAR 91
Muller v Dalgety & Co Ltd (1909) 9 CLR 693
Stambulich v Ekamper [2002] WASCA 212
(Page 3)
1 STEYTLER P: I have had the advantage of reading the judgment of Wheeler JA. It seems to me, in the end, that the orders made by this Court on 27 September 2005 should stand. However, I respectfully differ from Wheeler JA on the question whether the applicant (the respondent in the appeal) should have leave to reopen the issue upon which the judgment turned and in respect of which he says that he has not been heard.
2 The appeal turned on the question whether, the appellant having contracted with a company for the provision of security services at a school, an employee of the company who was sent to the school for that purpose (and who was injured in the course of providing the security services) was deemed to be employed, also, by the appellant. The answer to that question depended upon the construction of s 175 and s 6 of the Workers' Compensation and Injury Management Act 1981 (WA) ("the Act").
3 Section 175(1) provides that when a person ("the principal") contracts with another ("the contractor") for the execution of any work by or under the contractor and, in the execution of the work, a worker is employed by the contractor, both the principal and the contractor are, for the purposes of the Act, deemed to be employers of that worker. However, s 175(3) provides that the principal is not liable under s 175 unless the work on which the worker is employed at the material time is directly a part or process in the trade or business of the principal.
4 Section 6 of the Act provides that the exercise and performance of the powers and duties of a public or statutory authority (which the appellant is), shall, for the purposes of the Act, be treated as the trade or business of the authority.
5 In its judgment, the Court concluded that, on the proper construction of s 6, anything which a public authority lawfully does is to be regarded as its trade or business. Consequently, because the appellant was specifically given the power, inter alia, to maintain government schools, encompassing the power to cause them to be kept secure, the exercise and performance of that power was, for the purposes of the Act, to be treated as the trade or business of the appellant, and the work upon which the respondent was engaged was directly a part of that trade or business. However, counsel for the respondent contends that he was not heard on this last issue and that, given the course which the hearing of the appeal took, there was no need for him to make submissions which bore upon it.
(Page 4)
6 It is true, as Wheeler JA has pointed out, that the issue of the construction of s 6 was raised at an early stage of the appeal. However, counsel for the appellant made it plain that, as he saw the position, there was "no argument" relating to s 6 and that the real question was whether or not the work on which the injured worker had been engaged was "directly" a part or process in the trade or business of the appellant, it being implicit in that submission that s 6 did not itself answer that question. Moreover, I think it fair to say that the Court (myself in particular) debated this question with counsel for the appellant, upon a basis which assumed that it was not decided by the construction of s 6. In those circumstances, it is not surprising that counsel for the respondent did not directly address the question of construction upon which the case ultimately turned.
7 As the High Court has reaffirmed in De L v Director-General, NSW Department of Community Services(No 2) (1997) 190 CLR 207 at 215, there is no doubt that that Court may reopen unperfected judgments or orders if it is convinced that it has proceeded "on a misapprehension as to the facts or the law" (Autodesk Inc v Dyason(No 2) (1993) 176 CLR 300 at 302) or where "there is some matter calling for review" (Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 at 265) or where "the interests of justice so require" (Autodesk at 322, per Gaudron J). The power is one which, the High Court has said, must be exercised with great caution (State Rail Authority of NSW v Codelfa Construction Pty Ltd (No 2) (1982) 150 CLR 29 at 38; Wentworth v Woollahra Municipal Council (No 2) (1982) 149 CLR 672 at 684 and Autodesk at 302) and the circumstances that will justify a rehearing, must be "quite exceptional": State Rail at 38 per Mason and Wilson JJ. That is so because of the obvious public interest in the finality of litigation: De L at 215; Autodesk at 302; State Rail at 38; and Wentworth at 684. However, the judgments of the High Court reveal a preparedness by that Court to reopen an unperfected judgment or order where an applicant can show that "by accident without fault on his part he has not been heard": Wentworth at 684, per Mason ACJ, Wilson and Brennan JJ; and Autodesk at 302, per Mason CJ, 308, per Brennan J, and 312, per Deane J. That is because a court should not pronounce a judgment against a person on a ground which that person has not had an opportunity to argue: Pantorno v The Queen (1989) 166 CLR 466 and Autodesk, at 308, per Brennan J.
8 While there is a difference between an ultimate Court of Appeal, such as the High Court, and an intermediate appellate court, such as this, in that error on the part of this Court is not irremediable (as to which see State Rail at 38; De L at 215; and McAdam v Robertson (1999) 73 SASR
(Page 5)
- 360 at 367, per Doyle CJ), it seems to me that, when a party has not been given an adequate opportunity to present submissions in relation to a finding of critical importance to the court's ultimate decision (cfAutodesk, at 312, per Deane J), this Court, too, should be willing to reopen an unperfected judgment or order. Even in a clear case, the aggrieved party will otherwise have no means other than the considerable expense and inconvenience of an appeal to the High Court in order to put the matter right: see In reHarrison's Share Under a Settlement [1955] Ch 260 at 283 and Autodesk, at 308 (fn 25), per Brennan J.
9 Of course, the jurisdiction will not be exercised for the purpose of enabling counsel to reargue a point merely because it has not been argued as well as it might have been: Autodesk at 303 and 307, per Mason CJ. As Doyle CJ said in McAdam at 367:
"Our system of adversary litigation, with the obligation that it imposes upon the parties to present their whole case and to present their best case, would begin to collapse if courts too readily entertained applications to reopen decisions given after a full hearing. The power can be exercised if some important principle of law has been overlooked, or if there is an apparent misapprehension as to a significant fact, but this is to be distinguished from enabling a party to attempt to persuade a court that it should change its view of the matter that it has considered and decided."
- Nor does the mere fact that the court formulates a ground upon which its judgment turns in terms which do not precisely mirror a submission made by counsel necessarily mean that no adequate opportunity has been afforded to make submissions in respect of that ground, if the ground is one which has fairly arisen in the course of the proceedings. As Brennan J pointed out in Autodesk, at 308:
"… a sufficient opportunity to argue a ground is given when the ground is logically involved in a proposition that has been raised in the course of argument before the court or is to be considered by the court as an unconceded step in determining the validity of a conclusion for which one of the parties contends."
(Page 6)
- respondent was encouraged by the submissions from the appellant, and by the subsequent debate with the Court, into believing that it was unnecessary for him to direct submissions to the critical issue upon which the Court's decision ultimately turned. It consequently seems to me, with the benefit of hindsight, that the respondent, through no fault of his own or of his counsel, was not given an adequate opportunity to direct submissions to that issue and that the Court's judgment should consequently be reopened for that purpose.
11 There remains the question whether the orders made should be set aside. When the Court heard the application to vacate those orders, it afforded to counsel for the respondent the opportunity, which was taken by him, to put, in full, the submissions which he would have advanced had he been given an adequate opportunity to do so at the hearing of the appeal. Having heard and considered those submissions, I am not persuaded that the conclusion arrived at by the Court on the prior occasion was in error. Rather, it seems to me, for the reasons given by Wheeler JA in that respect, that nothing in those submissions should cause us to change our previous judgment. For that reason only, it seems to me that the orders previously made by this Court should stand.
12 WHEELER JA: This is an application to vacate orders made by this Court on 27 September 2005, to recall the judgment in this matter and to hear further submissions on the ground that the applicant (the respondent to the appeal) was not heard in respect of the issue upon which judgment turned. The orders have not been perfected. The application has been made promptly, being first flagged by letter from the applicant's solicitors on the afternoon of the day upon which judgment was delivered.
13 The circumstances in which a judgment may be recalled by an intermediate appellate court, where it remains unperfected, were discussed in terms which I would respectfully adopt in McAdam v Robertson (1999) 73 SASR 360.
14 The applicant contends that, not only was the applicant not heard on the point on which judgment turned, but that there was a concession by the respondent in relation to that matter, which concession, it is said, is recorded at [6] of the Court's reasons for decision. It concerned the application of s 6 of the Workers' Compensation and Injury Management Act 1981 (WA) ("the Act"). I set out more fully the relevant exchange which occurred during the course of argument between Steytler P and counsel for the appellant in the appeal:
(Page 7)
- "STEYTLER P: Is it a fair comment to say that your argument really depends upon the construction of section 6 of the Workers' Compensation Act?
CLYNE, MR: There's no argument on section 6. It's conceded on this appeal that this is part of the trade or business of the minister for education [in context, Mr Clyne is asserting that the concession is one made by the present applicant].
STEYTLER P: I must say that I don't understand that to be so. What was part of the trade or business of the minister for education was contracting with people to provide security. It wasn't part of its trade or business to actually provide security.
CLYNE, MR: We say section 6 enables us to fall within the definition of 'trade or business' and that trade or business is the provision in this case of public education.
STEYTLER P: Precisely, and not the provision of security.
CLYNE, MR: Certainly."
15 That exchange, in my view, reveals that Steytler P, at least, was concerned with the question of whether the provision of security could be regarded as part of the trade or business of the Minister for the purpose of s 6. His Honour was flagging the proposition that the construction of s 6 was one of relevance to the disposition of the appeal.
16 The construction of s 6 must, on any view, have been an indispensable step in the disposition of the appeal. The phrase with which the Court was concerned was, "directly a part or process in the trade or business" in s 175(3) of the Act. It is, of course, necessary for that purpose to understand what is the trade or business, and what is to be considered a part of it. Only then is it possible to consider what, if anything, the word "directly" has to do.
17 It seems that the acceptance by Mr Clyne that the trade or business of the Minister was to be characterised as the provision of public education, and not the provision of security, may have been understood by counsel for the applicant as a concession that the provision of security, while related to the trade or business of the Minister, was not necessarily to be regarded as "part of it" for the purposes of s 6. Certainly, following on from the exchange quoted above, counsel for the appellant in the appeal sought to argue by analogy with other decided cases concerned with the
(Page 8)
- meaning of the word "directly" in s 175, and gave no further attention to s 6.
18 However, while I can see how some confusion may have arisen, through no fault of the applicant's counsel, I am by no means convinced that that exchange should be regarded as a concession on the part of the appellant's counsel; it is not clear what view of the construction of s 6 Mr Clyne was there advancing. In the light of the clear flagging of the issue by Steytler P, and having regard to the extreme caution which the Court should exercise in recalling its decision, I would be inclined on balance to the view that this is not an appropriate case in which to permit the reopening of that issue.
19 In any event, it is my view that there would be no purpose served by reopening that decision. At the hearing of the applicant's application to reopen, we heard submissions from the applicant as to what contentions would be advanced in relation to the construction and relevance of s 6, were the applicant permitted to reopen that decision, and we heard from the respondent in reply.
20 At the heart of the submissions which the applicant would seek to advance is the proposition that s 6 is a deeming provision and that, consistently with authority, it should be "construed strictly and only for the purpose for which [it is] resorted to" (Commissioner of Taxation v Comber (1986) 10 FCR 88 at 96 per Fisher J). That proposition may be accepted. However, as the applicant's counsel conceded, despite what seemed to have been careful research on his part, the purpose of s 6 as a matter of legislative history is "somewhat obscure".
21 He submits that it should be understood as having the purpose only of bringing employees of the authorities described in s 6 within the scope of the Act. However, one can imagine many other ways in which that could have been done, without resorting to the apparently exhaustive definition of "trade or business" of such authorities which is to be found in s 6. In my view, s 6 is clear in its terms and there is therefore no need to read it either narrowly or broadly, or to have resort to considerations of legislative purpose.
22 The applicant also submits that the effect of understanding s 6 in the way described in the decision which we earlier delivered, would be to catch a "multitude" of workers who had not previously been understood to fall within its scope. He submits that that cannot be consistent with the legislative purpose. However, in the absence of any clear understanding
(Page 9)
- of what the legislative purpose may have been, I would see no reason to read s 6 other than in accordance with its terms, in the way described in the decision delivered on 27 September 2005.
23 I would therefore dismiss this application.
24 PULLIN JA: Courts often hear counsel for a party say that a "concession" has been made. By this counsel may mean that he or she is admitting a fact or agreeing with a point of law and that the admission or agreement will affect the future conduct of the case. I will call this a "formal concession". Sometimes however, counsel may say that a "concession" is made, meaning merely that counsel acknowledges the validity of a proposition or point without the acknowledgement having any effect on the way the case is conducted.
25 If there is any uncertainty about what is intended by the use of the word "concession" then the parties or the Court may proceed on a misunderstanding or there may be unnecessary disputation about what was intended. Counsel should not contend that a formal concession has been made by counsel on the other side when there is no foundation for such a contention.
26 In my view:
(a) Counsel should use the word "concession" with care;
(b) If counsel intends to make a formal concession, then it should be formulated with precision.
(c) The effect it will have on the future the conduct of the case should be agreed upon by the parties and the agreement stated in open court. If the parties cannot agree on the effect it will have, then the party proffering the formal concession might choose to withdraw it, if free to do so. Alternatively the parties may ask the court to rule on the effect the formal concession will have;
(d) If there is any room for doubt about whether or not a formal concession has been made, or doubt about the effect it will have, then counsel for the other party or parties should seek clarification to remove the doubt;
(e) If the court is uncertain about whether or not a formal concession has been made or is uncertain about the effect it will have, then the court should raise the subject with a view to removing the uncertainty;
(Page 10)
- (f) Counsel should not contend that a formal concession has been made by opposing counsel when there are insufficient grounds for such a contention. Such a contention may lead to unnecessary disputation. See for example Clay v Clay (2001) 202 CLR 410 at [28] and [29].
(g) Finally, I note that a concession (formal or otherwise) about a proposition of law cannot bind the court to agree with that proposition. Pantorno v The Queen (1989) 166 CLR 466 at 473. However, the court may have to inform the parties that it considers that it may not accept the agreed meaning. It will usually be a denial of procedural fairness to refuse to act on a formal concession settling the parties' view about the meaning of legislation without inviting further submissions (Seltsam Pty Ltd v Ghaleb [2005] NSWCA208 [78]).
27 In this case the application which has been made by the respondent to the appeal seeking an order to vacate the orders made by the Court and to hear further submissions is based upon his contention that a formal concession had been made by counsel for the appellant which had the effect that counsel for the respondent was not obliged to make any submissions in relation to s 6 of the Act. (I note that there is room for doubt about this because Wheeler JA considers that Mr Clyne was asserting that the concession was made not by him but by the respondent. I will proceed on the assumption that the situation was as the respondent contends it to be.) The relevant section of the transcript which is set out in Wheeler JA's reasons, reveals that counsel for the appellant did use the word "conceded". However, immediately after the word had been used the President expressed his doubt about the concession. The President had also expressed a provisional view that the appellant's argument depended on the construction of s 6 immediately before the word "conceded" was used.
28 Counsel for the respondent contends that he thought a formal concession had been made by the appellant about the meaning and application of s 6. He contends that he thought the consequence was that he did not have to make submissions about the section and its application in this case. Counsel for the respondent has now had that opportunity. Thus even if there were a breach of procedural fairness leading counsel for the respondent not to make submissions about s 6 during the hearing of the appeal, that breach has been remedied because the respondent has now said all that he wished to say during the application for leave to
(Page 11)
- reopen. There is no point in vacating the orders and granting leave to reopen argument in those circumstances.
29 Apart from those comments, I agree with Wheeler JA.
0