MMI Ltd v Baker

[1997] HCATrans 279

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S30 of 1997

B e t w e e n -

MMI LIMITED

Applicant

and

JOHN WAYNE BAKER

First Respondent

MASPORT MARINE LIMITED

Second Respondent

MMI WORKERS COMPENSATION (NSW) LIMITED

Third Respondent

Application for special leave to appeal

BRENNAN CJ
TOOHEY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 3 OCTOBER 1997, AT 10.33 AM

Copyright in the High Court of Australia

MR C.E. O’CONNOR, QC:   In this matter, if the Court please, I appear with my learned friend, MR D.T. KENNEDY, for the applicant.  (instructed by A.O. Ellison & Co)

MR R.R. STITT, QC:   May it please your Honours, in this matter I appear with my learned friend, MR H.J. HALLIGAN, for the third respondent.  (instructed by Gibson Robinson)

BRENNAN CJ:   I have been informed that the first and second respondents in this matter do not wish to be represented at the hearing of the application for special leave to appeal and will submit to any order of the Court save as to costs.

MR O’CONNOR:   Your Honours, the issue in this application is the construction of section 151AB of the New South Wales Workers Compensation Act 1987. There are a large number of cases that depend upon the outcome of this decision and it will affect the way the insurers adjust their liabilities between themselves. We acknowledge that the Act was amended in 1995 but it will be our ultimate submission that the amendments do not cure the particular problem thrown up by the construction offered by the Court of Appeal to the section.

If I could just digress to a short factual background.  The first respondent, who is the worker, was employed by the second respondent, the employer, between the years 1973 and 1990.  There is no issue between the parties that between those dates he was exposed to a noisy environment which resulted in him sustaining an occupational disease known as boilermaker’s deafness.  The worker sued his employer for damages as a consequence of this exposure, it being alleged that the employer was guilty of negligence in failing to take adequate precautions to protect him from such exposure.

It is common ground that the worker was employed in a noisy environment but that employment was of a nature to which the disease, namely boilermaker’s deafness, was due between the years 1973 and 1990.  The applicant was a licensed workers compensation insurer of the second respondent, the employer, up until 30 June 1987.  The third respondent, MMI Workers Compensation (NSW) Limited, was the insurer from 1 July 1987 until the time the worker left the employ of the second respondent. 

Your Honours, the proceedings at first instance involved the plaintiff’s claim against his employer, which was instituted ‑ ‑ ‑

BRENNAN CJ:   We have been through the application book, Mr O’Connor.

MR O’CONNOR:   If the Court please.  The challenge ‑ ‑ ‑

BRENNAN CJ:   Is this a question of statutory construction?

MR O’CONNOR:   Yes, it is, your Honour.

BRENNAN CJ:   On one statute which has now been repealed?

MR O’CONNOR:   Yes, it has, your Honour.

BRENNAN CJ:   What is the general question of statutory construction which requires consideration?  Is there any principle or is it only a matter of the application of the principles to this statute?

MR O’CONNOR:   The principle involved, your Honour, is the way in which the construction of the section affects the way insurers adjust their liability.

BRENNAN CJ:   One can understand that.  That is a matter for the Court of Appeal, unless there is some specific reason for bringing it here.

MR O’CONNOR:   Your Honour, only that there are a large number of cases will be affected by the way in which this is construed by this Court and it will affect the way liabilities are adjusted between the insurers.  That is the matter of principle that is involved.

BRENNAN CJ:   It is settled principle applied to the statute, is that right?

MR O’CONNOR:   Yes.

BRENNAN CJ:   That is all you have to say?

MR O’CONNOR:   Yes.

BRENNAN CJ:   I think you have a barrier very much ahead of you.

MR O’CONNOR:   Are your Honours against me at this early point in the submissions?

BRENNAN CJ:   Yes.  Unless you can point to some general principle of statutory construction which this statute raises as distinct from the importance of it in practice.

MR O’CONNOR:   I cannot point to any such general principle, your Honour.

BRENNAN CJ:   In that case it is a New South Wales statute, no doubt of importance, which primarily should be dealt with by the Court of Appeal.

MR O’CONNOR:   If the Court please.

BRENNAN CJ:   For that reason special leave will be refused.

AT 10.38 AM THE MATTER WAS CONCLUDED