Mokta v Metro Meat International Ltd

[2006] HCATrans 256

[2006] HCATrans 256

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  Nos P45 and P52 of 2005

B e t w e e n -

JEWITA MOKTA

Applicant

and

METRO MEAT INTERNATIONAL LIMITED

Respondent

Application for special leave to appeal

KIRBY J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 19 MAY 2006, AT 12.42 PM

Copyright in the High Court of Australia

MR B.L. NUGAWELA:   May it please your Honours, I appear for the applicant in this matter.  (instructed by Friedman Lurie Singh)

MR J.G. STAUDE:   May it please the Court, I appear for the respondent.  (instructed by D G Price & Co)

KIRBY J:   Yes, what do you say about this application?

MR NUGAWELA:   Thank you, your Honour.  The crux of this application concerns the two limbs of section 93B of the Act; the first limb being “compensation has been paid or is payable” and the second limb being “or would have been paid or payable but for section 22”.  In our submission, the Court of Appeal rewrote the first limb to mean and provide that if a disability occurred simpliciter then the division restricting access to common law damages applies because compensation would be payable instanter pursuant to section 18 of the Act.  We say that there are four grave errors that arise from that rewriting of the clear words of the legislation.  Turning first, if I can, to the clear words of section 18 itself.

KIRBY J:   Yes.

MR NUGAWELA:   In the book of authorities, your Honours will see that section 18 provides that:

If a disability of a worker occurs, the employer shall, subject to this Act, be liable to pay compensation -

So the first point is that section 18 does not, contrary to the Court of Appeal’s reasoning, provide an instanter liability.  It is a liability which is contingent upon other sections of the Act, a liability to pay subject to the Act and, of course, cogent to the matter below there are other sections which intervene between the occurrence of a liability and the payment, namely section 64 and section 81.  So that is the first point.

The second point, of course, your Honours, is that this decision of the Court of Appeal stands in stark conflict with other authorities throughout the country.  We have cited the decision in Gaffney of his Honour Justice Zeeman from the Supreme Court of Tasmania, applying what Justice Beaumont in the Federal Court in the Australian Telecommunications Corporation Case held, in short that a liability to pay, in any event, does not amount to compensation being payable.

There are two more brief points, your Honours.  The third point is this; that the decision of the court was contrary to the intention underpinning the West Australian legislation and that is the quid pro quo argument, that Parliament enacted the entire division restricting access to common law damages in exchange for access to no fault statutory payments.  That statutory intention, that quid pro quo as we say in our summaries of argument, is reflected not only in a prior decision of the Full Court in Orana House, which is the very first authority in our book of authorities, but is also reflected in the very terms of section 93E(8) which talks about this quid pro quo if a worker elects for no fault statutory benefits then he or she has or suffers, in some circumstances, a cap on his or her common law damages.

The fourth point, of course, is this; that the construction adopted by the learned Court of Appeal below would really render the second limb of 93B completely otiose, that limb, of course, which says:

would have been paid or be payable but for section 22.

If the test is simply whether a disability occurs simpliciter it does not matter whether subsequent conduct is in breach of section 22 and the entire second limb of section 93B just has no work to do and it is a well‑established rule of construction that Parliament does not enact things which have no meaning, which brings us back to our first point, which is the error disclosed in the Court of Appeal’s judgment.  Essentially they failed to consider every word in the statute in order to ascertain intention behind the enactment.

Your Honours, can I conclude by saying that there are four reasons why this is a case of national or public importance.  Firstly, the individual justice of the case.  The situation disclosed here was that no fault statutory compensation was not payable, but this worker has been barred from accessing the quid pro quo common law damages because her action was struck out at an interlocutory level.

The second point is that we have demonstrated, I hope sufficiently, to your Honours, that there is inter‑jurisdictional conflict with similar provisions across various jurisdictions in Australia, specifically Tasmania and also the Commonwealth. 

Thirdly, the construction of the phrase “payable” has implications for the States of Victoria as well as the Australian Capital Territory and that is demonstrated in the statutory materials that we have produced to your Honours.

Fourthly and finally, this decision if not corrected will affect many unrepresented workers who do not, for instance, fill in a claim form properly as required by section 84I at a point when the injury occurs with the ultimate result that not only do they lose out on no fault statutory

compensation but have their access to common law damages completely barred.  As we say in our outline, the number of workers in Western Australia who face this predicament ranges between 19,000 to 42,000 annually.

Your Honours, those are the primary submissions that we have.  There are secondary arguments but they do not represent our best foot forward and at this stage I would simply invite your Honours to treat our summary of argument as being read in those respects.

KIRBY J:   Yes, very well.

MR NUGAWELA:   May it please the Court.

KIRBY J:   Thank you, Mr Nugawela.  Now, Mr Staude, I wonder if I could ask you to address us on the submission that there is a disparity in the approach to comparable legislation by Justice Zeeman in Tasmania and that that is a reason for this Court to be concerned on what is rather particular legislation of a particular State dealing with a particular subject matter that would not normally attract our attention.

MR STAUDE:   Well, your Honours, that is the point we made about the Tasmanian decision.  It arises in a different statutory context although with some similarities inasmuch as the statute concerns compensation law.  The decision in Gaffney, we say, does not stand in sharp contradistinction to the decision of the Court of Appeal in this case because of that different context because in cases such as this, where compensation law develops to a certain extent according to local circumstances and local legislative responses, it is very difficult to, in any case, assume a consistency of meaning between Acts in different jurisdictions.  Even in our own jurisdiction the word “disability” as used in the Act has different constructions according to its context.

So what the respondent would say in relation to the point which your Honour Justice Kirby raises is that the context is the key to distinguishing any difference in approach that might be discerned and it does not justify any intervention at this Court’s level.

KIRBY J:   But is there any difference in the statutory or factual context that explains Justice Zeeman’s different construction?

MR STAUDE:   The context in which the meaning of “payable” was determined in this case was one in which the ‑ ‑ ‑

KIRBY J:   Justice Zeeman’s decision was in Gaffney, was it not, and that is behind tab 2 in the application papers?

MR STAUDE:   Gaffney’s Case was a special case stated for opinion and it involved the application of a provision of the Commonwealth Employees’ Rehabilitation and Compensation Act and the application book contains not only the full reasons of Justice Zeeman, but also the notes which were published in relation to that decision.

KIRBY J:   Yes.

MR STAUDE:   The notes summarise the essential finding of his Honour in relation to the construction question where it says – and this is at page ‑ ‑ ‑

KIRBY J:   Yes, we have that.  That is opposite the page.

MR STAUDE:  

compensation is payable, not where there is a liability to pay, but only when the quantum of compensation has been determined under the Act ‑ ‑ ‑

KIRBY J:   What do you say about that?

MR STAUDE:   The decision in Gaffney does not reflect or does not turn upon the same circumstances as faced the Court of Appeal in this case.

KIRBY J:   In what way?

MR STAUDE:   The court in Gaffney was concerned with the liability imposed by section 24 of the relevant Act and its prospective operation.  The difference in the case before your Honours is that the liability to pay compensation was found by the Court of Appeal to have existed up to the point where the applicant became disqualified.

KIRBY J:   Is there anything else you want to say about Justice Zeeman’s decision?

MR STAUDE:   Not otherwise, your Honours.

KIRBY J:   Yes, very well.

MR STAUDE:   Is that the only ‑ ‑ ‑

KIRBY J:   I do not think we need to hear you on other matters.  Thank you very much.

MR STAUDE:   May it please the Court.

KIRBY J:   Anything in reply, Mr Nugawela?

MR NUGAWELA:   Only very briefly, your Honours.  Can I take your Honours to the actual decision of Justice Zeeman which appears under tab 2.  On page 2, the bottom paragraph, his Honour encapsulates the argument that was put to his Honour and I will not read it out to your Honours but a quick reading of it would show its identity with the issue that was placed before the Court of Appeal.

KIRBY J:   Is not the problem though, that if your theory is right, that an applicant can by his or her own election walk out of the provisions of the Act?

MR NUGAWELA:   Can I respond in two ways to that question immediately ‑ ‑ ‑

KIRBY J:   That does not seem to be the purpose of the legislature in drafting these provisions, which one might call horrible provisions, but they are deliberately enacted and have to be conformed to so long as they are valid.

MR NUGAWELA:   I accept that.  The point attracted the attention of his Honour Justice Pullin ‑ ‑ ‑

KIRBY J:   That is right.

MR NUGAWELA:    ‑ ‑ ‑ at paragraph 20 of his Honour’s reasons where, for the purposes of the matter before his Honour, his Honour said that the notion of fault with objective intention was not relevant in determining the statutory construction question placed before his Honour that was raised by section 93B and to that extent his Honour overturned or overruled, for want of a better word, the approach that his Honour Justice Nisbet in the District Court took which, as your Honour Justice Kirby put to me, was this notion of a person being in a position to voluntarily take himself or herself out of the provisions of the Act.  That is our first point.

Of course, the second point is this, that in the particular circumstances of this case the finding of the review officer below, which is usefully placed in the materials provided by my learned friend in his book of authorities, was that this worker did not intentionally take herself out of the provisions of the Act.  There were language problems and cultural differences and sensitivities that resulted in her technically failing to observe the provisions of section 84I and ‑ ‑ ‑

KIRBY J:   Yes.  I realise that but we have to test your construction by the way it operates in all cases.  It is not just a matter of applying it in the facts of this particular case.

MR NUGAWELA:   I accept that, your Honour.  The best I can do is to urge upon your Honour what his Honour Justice Pullin said at paragraph 20 in the Court of Appeal’s reasons and that might be a matter that is not a complete answer to the statutory construction point.  Can I finally quickly take your Honours to page 7 of Justice Zeeman’s reasons for decision, having stated the issue at page 2, in the first paragraph at page 7 his Honour said:

I do not consider that the expressions “liable to pay” and “is payable” are interchangeable.

In the next 10 or so lines explains his Honour’s reasons.

KIRBY J:   Yes.

MR NUGAWELA:   I think my time is up, your Honours.

KIRBY J:   Thank you, Mr Nugawela.  This application concerns the meaning and application of the Workers’ Compensation and Injury Management Act 1981 (WA). Although the legislation is not entirely clear, the question for us is whether the applicant has demonstrated error in the unanimous reasons of the Court of Appeal of Western Australia. We are not convinced that such error has been shown or that the application would enjoy reasonable prospects of success were special leave granted.

Accordingly, special leave must be refused.  The applicant must pay the respondent’s costs.

AT 12.59 PM THE MATTERS WERE CONCLUDED