Mulcahy & Ors v The hydro Electric Commission

[1999] HCATrans 406

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Hobart  No H1 of 1998

B e t w e e n -

BARRY MULCAHY (and the other persons whom are identified and described in the schedule appended hereto)

Applicants

and

THE HYDRO ELECTRIC COMMISSION

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM HOBART BY VIDEO LINK TO CANBERRA

ON FRIDAY, 19 NOVEMBER 1999, AT 11.25 AM

Copyright in the High Court of Australia

MR P.W. TREE:   If it please your Honours, I appear for the applicant.  (instructed by Ogilvie McKenna)

MR S.P. ESTCOURT, QC:   May it please the Court, I appear with my learned friend, MR R.E. HUDSON, for the respondent.  (instructed by Butler McIntyre and Butler)

GLEESON CJ:   Yes, Mr Tree.

MR TREE:   Your Honours, in one characterisation, this application is unusual in that it seeks to ventilate an appeal in respect of three statutes which have been either substantially replaced or actually repealed, and to that extent it might be thought that there is some courage in suggesting that there is a special leave point in respect of repeal to replace statutes.

There are two observations which I wish to make in respect of that.  The first is that there continues to be ongoing application of the very question which is thrown up by this application, namely, what the meaning of the phrase “employed in a permanent capacity” means, and further, the extent to which the distinction which is drawn in the several pieces of legislation between being employed in a permanent capacity as distinct from employment of a temporary nature, that distinction continues to have continued operation in this State at least.

GLEESON CJ:   Could you be temporarily employed as a chief executive?

MR TREE:   Quite so, your Honour, yes, and perhaps the best ‑ ‑ ‑

GLEESON CJ:   But the position of a chief executive is a permanent position in the structure and organisation of the corporation.

MR TREE:   Quite so, but one’s tenure of that role could be temporary.

GLEESON CJ:   Yes.

MR TREE:   The best illustration which one can think of apart from that which your Honour has put forward is perhaps of the Prime Minister.  There, there is an office which continues, albeit one would never seriously have a view that a particular incumbent’s tenure to the office was permanent.  So that it is an office which has permanence, but the tenure of the person within the office from time to time will change.  So that is one other illustration of the sort of circumstance in which an office can continue or a position, or the work which is required can continue, but the tenure of the person does not overlap or coincide with the permanence of the office.

The point is made in the outline of submissions that additionally the phrase “employed in a permanent capacity” appears in the Commonwealth legislation dealing with statutory superannuation entitlements for public servants and the like.

GLEESON CJ:   What is it that you say that phrase means?

MR TREE:   It means – can I take it in two steps, your Honour.  Firstly, it is clear, and the court below identify, that “capacity” in that context means position, and the court clearly makes that observation, if I can take your Honours to it, at page 139 of the application book.

GLEESON CJ:   What would you say of a temporary chief executive?  Is such a person employed in a permanent capacity?

MR TREE:   Yes, your Honour, but their employment may not be of a permanent nature.  So that is where the distinction between “capacity” and “nature” really homes in.  It is a distinction which is by no means unique to this legislation, as your Honours will see in a moment when I take you to the authority of Haines v Woy Woy.  Perhaps if I can take your Honours firstly to page 139 of the application book.  At line 14 your Honours will see that the Full Court say this:

First, the wording of the relevant legislation does not support the dichotomy upon which the appellants relied.

They then give the Shorter Oxford English Dictionary definition of “capacity” as meaning “Position, condition, character, relation”.  If one accepts therefore that what their Honours are really saying is that “permanent capacity” means permanent position, one is then immediately confronted with, with the greatest of respect, an anomaly in their Honours’ reasons, because thereafter at page 141, when dealing with the authority of Haines v Woy Woy Shire Council, their Honours conclude that it “is of no assistance in the present context” because it dealt with the phrase “permanent position”.

GLEESON CJ:   Mr Tree, does the statement at page 139 lines 22 to 24 accurately reflect the contention that you are putting forward?

MR TREE:   Yes, your Honour, albeit that “work” and “position” could be perhaps used interchangeably, so that a position can be either given a physical description, in the case of Mr Mulcahy on occasions of works industrial officer, or alternatively a position can be described by reference to the work which is undertaken and which that position is designed to fulfil.

GLEESON CJ:   But your argument is that the test of whether a person is employed in a permanent capacity focuses on the nature of the work performed, while the test of whether a person’s employment is casual or temporary focuses on the terms of the contract of employment.

MR TREE:   Yes, in substance, that is so, your Honour.  The authority from which that proposition is derived is Haines v Woy Woy Shire Council, and if I can take your Honours to that authority - it is in the bundle of materials which has been provided to your Honours - your Honours will see that in the factual introduction to that authority the clause of the relevant ordinance is recited, albeit perhaps paraphrased – this is at the top of page 99, second column:

Clause 8 of Ordinance 4 provides that an appointment (other than a temporary appointment for a period not exceeding three months) shall not be made to any permanent position in the service of a council until certain requirements are satisfied –

If I can just pause to note that again this distinction between the temporary nature of the tenure and the permanent nature of the office seems to be drawn even in this ordinance.  There, a little later at page 102, second column, approximately three‑quarters of the way down his Honour Justice Street cites seemingly with approval an aspect of the argument which had proceeded before his Honour and concludes at about seven or eight lines from the bottom of the page:

That appears to me to be the real test as to whether or not a position is permanent.  It does not mean that it is to last for ever, but I think that any position that has no definite time limit to its existence, and which forms an integral part of the ordinary and regular administration of the Council is a permanent position.

So the argument which we say is that that authority is of great persuasive value in determining the question which was raised by this appeal, namely, what does the phrase “permanent capacity” mean, because “capacity” means position, and this is a definition of “permanent position” which articulated in 1933 does not seem to have been doubted or criticised thereafter, and which importantly has temporarily coincided with all of the statutory provisions which are the subject of this appeal.  So that, with the greatest of respect to the court below, to suggest that that decision would provide no assistance is clear indication that their Honours did not continue to apply the definition of “capacity” which they had previously articulated just two pages earlier, in consideration of the impact of that authority.

Interestingly, with respect, the court below did not suggest that Haines v Woy Woy was wrong or that it was in some way representing a statement of incorrect principle.  In my respectful submission, it clearly states a perfectly correct principle.  Rather, the court simply said that it was of no assistance and seemed to be, in effect, saying that it was distinguishable because of the difference in language contained therein. 

In my respectful submission, in doing so the court below has manifested a clear error, and in so far as my friends suggest that the decision below is not attended by doubt, in my respectful submission, that is one of the easiest and quickest ways of finding the doubt which attaches to the decision below.

A second area of doubt is, of course, the failure on the part of the court below to articulate the test of what “employed in a permanent capacity” means.  If your Honours look at page 137 of the application book, your Honours will see commencing at line 5 the court below recited a passage of the trial judge’s reasons during which it seems to have been the high water mark of his Honour’s articulation of what the test was.  There your Honours will see about line 5 or 6 into the excerpted passage his Honour says:

Nevertheless, on their initial engagement, which for the reasons already mentioned, I regard as the relevant point in time, the [Commission] was not an organisation which could be said to carry on the business of dam construction on a continuous and indefinite basis.

His Honour goes on to make observations in respect of that.  So, although at the bottom of the excerpted passage the Full Court disagrees with the suggestion which was made during the course of argument that that was the test, namely, the permanence or indefinite continuity of the employer’s undertaking which the learned trial judge applied, it is very difficult to discern another test which is contained in the learned trial judge’s reasons.

There is similarly no test which is clearly articulated in the decision of the Full Court of the Federal Court, but at page 142 there is perhaps a good hint as to what the test was that the court had in its mind, and that is at line 8, dealing with the question of whether or not some employees were in a different position because they were not employed in the construction of dam projects.  Their Honours say at line 8:

The trial Judge rejected this submission.  He held that it would be “quite unrealistic” to construe the contract between the Commission and the wages employees as intended to make those workers permanent employees simply because they were not, initially at least, to be involved in dam construction.

So there seems to be a focus on the contract which seems to bring into focus again this issue of titular appointment.  The observation which we make in our outline of submissions, in my respectful submission, holds true.  If you have two workers, one of whom has titular appointment, the other does not, but in other respects their employment is identical, it cannot be the case that those workers are, for the purposes of this statute, to be treated differently.  That would make satisfaction of the statutory criteria dependent entirely upon an administrative Act, which is clearly not an appropriate way of effecting the operation of a statute.

But, if one comes back to the very simple facts which deal with applicants such as Cooper and Vlagsma, and I am now at page 158 of your Honours’ papers, your Honours will see that these two men simply have always been wages employees during their time with the Commission, or the corporation.  They were hired without any express limitation as to the tenure of their employment, or indeed as to the duration of their employment, and they continued to serve uninterrupted for a lengthy period of time with the Commission.

In respect of those people there is, in my respectful submission, no objective determination which says that they are anything other than permanent employees, or at least employed in a permanent capacity.  Simply because titular appointment as permanent had been withheld cannot mean that they were employed in a temporary capacity.  It is simply a nonsense, in my respectful submission.  There is clearly, in consequence of the failure to articulate a test, an injustice which has been wrought as regards Mr Cooper and Mr Vlagsma because simple logic applied to their facts does not lead to the conclusion that those facts mean, on the plain English meaning of the words “employed in a permanent capacity” , that they were not.  In fact, the exact opposite is, in my respectful submission, the case.

True it is that Cooper and Vlagsma are perhaps the high water marks of the applicants in this case, and that those applicants whose appointment to staff was specified as being temporary may be in quite a different category, but that is inevitable given the representative nature of these proceedings and the fact that there were six applicants selected to represent classes of applicants.  So that, in my respectful submission, that divergence of prospects between the applicants does not weigh against the grant of special leave.

Your Honours, as I have said, whilst it is perhaps a narrow point of statutory interpretation, it is a point of some importance in this State because

it impacts, even to today, upon a very basic right, namely, financial security in retirement, so that it is an important issue which is being raised by this application.  It has potential application to the Commonwealth of Australia and perhaps potential application to State employees in Victoria.

The other point which I should raise is that the issue is a very slender one, and it is unlikely to take a great deal of the time of this Court in determining what is effectively a very simple statutory interpretation point.  One could hazard a guess and say that an hour or two at the most would exhaust the arguments both for and against the propositions which are being put forward.  So that in so far as it might be thought ‑ ‑ ‑

GUMMOW J:   That is a very seductive advocacy, Mr Tree.

MR TREE:   Certainly, in so far as it might be an issue of weighing the valuable resource of the Court’s time against the public importance of the question, in my submission, the length of time likely to engage the Court in articulation of the arguments is relevant.  Your Honours, those are my submissions.

GLEESON CJ:   We do not need to hear you, Mr Estcourt.

The Court is of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave, and the application is refused.  Can you resist costs, Mr Tree?

MR TREE:   No, your Honour.

GLEESON CJ:   The applicants must pay the respondent’s costs of the application.

AT 11.40 AM THE MATTER WAS CONCLUDED