Newberry v Suncorp Metway Insurance Ltd

[2006] HCATrans 348

[2006] HCATrans 348

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B13 of 2006

B e t w e e n -

CRAIG OWEN NEWBERRY

Applicant

and

SUNCORP METWAY INSURANCE LIMITED

Respondent

Application for special leave to appeal

GUMMOW ACJ
CALLINAN J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 22 JUNE 2006, AT 9.31 AM

Copyright in the High Court of Australia

MR R.J. DOUGLAS, SC:   If it please the Court, I appear with MR D.C. RANGIAH for the applicant.  (instructed by Maurice Blackburn Cashman)

MR W. SOFRONOFF, QC:   May it please the Court, I appear with my learned friend, MR R.I.M. LILLEY, for the respondent.  (instructed by Herbert Geer & Rundle)

GUMMOW ACJ:   Yes, Mr Douglas.

MR DOUGLAS:   Your Honours, frequently Australian courts are called upon to construe statutes in a manner which involves giving them effect as if they contained additional language.  In our submission, this was one of those where the court did so.  We submit as an overarching submission in this vein that any intermediate appellate court’s non‑acceptance or lack of proper adherence to Lord Diplock’s adjuration in Wentworth v Jones is a matter which ought enhance the prospect to this Court in the grant of favourable disposition of special leave. 

In the case at hand, your Honours, there are two aspects of the matter to which we commend to this Court’s attention by way of an appeal.  In the first instance, the additional language read into the statute in question to overtake the literal meaning of the provision in question was undertaken without any anterior satisfaction of the second and possibly the third element of Lord Diplock’s test in Jones.  The second matter that we commend to the court is that in this particular instance, even if one adopts the construction that the intermediate appellate court of appeal did, one is left with a range of inconvenient outcomes and we will descend to those briefly.

GUMMOW ACJ:   What do you say about Mr Sofronoff’s point at page 38 of the application book, paragraph 8?  His stigmatisation, I suppose, of your case.

MR DOUGLAS:   In paragraph8?

GUMMOW ACJ:   Yes, page 38.

MR DOUGLAS:   Yes.  What we submit, your Honours, is this.  That was an outcome which we submit on the face of the statute accompanied by the extrinsic material which the Parliament ought be taken to have countenanced.  We say that for this reason – and this is a supporting aspect to Mr Sofronoff’s argument in this regard – what is adverted to is that anterior to the enactment of this statute, which took effect on varying dates but the earliest date was early December 2002, there were other statutes which predicated the substantive law in relation to claims or causes of action against non-employers.  That was in two parts.  One was in the Motor Accident Insurance provisions which commenced, your Honours, in late 2000.  The other were the Personal Injuries Proceedings Act provisions which commenced in 2002. 

They had been on foot, as those dates suggest, for a relatively short period of time and prescribed restrictions in respect of the substantive law for the disposition of those non‑employer causes of action to a level not even approaching those contained in the Civil Liability Act.  What we submit directly in response to the presiding Judge’s question is that the legislature, particularly by reference to the extrinsic materials, contemplated the fact that persons involved in broadly employment circumstances resulting in causes of action against their employers or non‑employers were to be treated specially and to be excluded from the operation of the Act.

GUMMOW ACJ:   Where do we find the text of the provision?  Is it set out sufficiently at page 14, the text of 5(b)?

MR DOUGLAS:   It is best to go to the provision itself.  We have given your Honours a copy of the full Act.  It appears at page 8 of the pamphlet copy – pagination at the top of the page – commencing towards the foot of that page.  This is Reprint 1C that we are referring the Court to.  We originally provided the wrong reprint yesterday, I am sorry.  The relevant provision in question here pertinent to the facts at hand is at page 9, paragraph (b), but as we submit in our written materials the balance of the section is not without moment in the process of construction. 

Your Honours, it looks rather disjointed, but paragraph (b) was introduced by way of amendment in the year following the Act to countenance the circumstance of the introduction of the new workers’ compensation statute in Queensland, the Workers’ Compensation and Rehabilitation Act 2003. As originally enacted, what presently appears as paragraphs (a), (c) and (d) were the enacted provisions.

GUMMOW ACJ:   I am sorry, you have taken to us a Reprint 1B?

MR DOUGLAS:   I have taken you to Reprint 1C.  As I indicated, your Honours, we originally provided the material in haste yesterday when we thought it was coming on and we gave you the wrong reprint.  We apologise for that.

GUMMOW ACJ:   I do not have it.

CALLINAN J:   I do not have it.

MR DOUGLAS:   We provided copies to the Court yesterday.

GUMMOW ACJ:   We are wasting time, really.  We have a couple of sheets from 1C.  Is that all we need?

MR DOUGLAS:   Yes, it is, thank you.

GUMMOW ACJ:   Wait a minute, I do not know.  No, it does not ‑ ‑ ‑

MR DOUGLAS:   Does the Court require another copy?

CRENNAN J:   No, thank you.

CALLINAN J:   Justice Crennan does not have a copy.

CRENNAN J:   I do have a copy.

MR DOUGLAS:   Your Honours, we submit, as appears from that section, the basal subject matter of the exclusion by reference to a cause of action is either against an employer or a non‑employer.

GUMMOW ACJ:   How do you read 5(b), “This Act does not apply in relation to any civil claim for damages for personal injury if the harm” – and I think the decision below would say or would understand it as saying – “if the harm claimed to result from the breach of duty is or includes an injury”?

MR DOUGLAS:   Yes, that is correct.  Your Honours, that that was the court’s interpolation of language appears from page 18 of the application book, line 435, where you see the words emboldened.  So Justice Keane adopted the language “for personal injury if the claim is that the harm resulting”, et cetera.  In our submission, the literal ‑ ‑ ‑

GUMMOW ACJ:   The opening words are talking about any civil claim, are they not?

MR DOUGLAS:   They are, but, in our submission, it is a civil claim for a cause of action and the focus must be upon the cause of action.  In our submission, the literal interpretation, that is, the interpretation bereft of the words, which is that which was adopted by Justice Dutney at first instance is the one to be preferred.  It is preferred for the reasons we outline in our outline but, more importantly, they are to be preferred because there is no good reason under the tests propounded – and it would appear that this Court has accepted the test predicated by Lord Diplock – under that test as propounded there is nowhere on the face of the judgments in the Court of Appeal any anterior consideration of either the second, nor arguably the third ‑ ‑ ‑

GUMMOW ACJ:   I do not think it is really a question of reading anything in, actually.

MR DOUGLAS:   But, your Honour, with respect, it never is in a sense because of course no court can legislate words.  It is a matter of reading something in such a manner that assumes that additional language was intended by the legislature.  I am not disagreeing with you, of course, but we accept that what your Honour has said is correctly the test, but one still must approach the matter on the basis of saying, “Well, what does this mean?  Does it mean that the Parliament intended something which involved words of that type being assumed that they were there?”  We submit that there was no basis and no basis which appears on the face of the judgment which involved any anterior consideration of that.  Indeed, what the appeal court did through Justice Keane was predicate what it considered was the proper interpretation and then attempt to justify that by reference to the extrinsic materials. 

One would have thought, at the very least, in the process of interpretation in the manner as Lord Diplock suggested one would perhaps start with the extrinsic materials accompanied by what appears otherwise on the face of the provision and the statute as a whole, but that is not what occurred here, and we make complaint because of that.  I do not want to rehearse what is in our outline but we submit that the test just was not satisfied here in that regard.  Indeed – before we get to our second point –, what it involves was a substitution as a means of legislative provision of what we would submit was correct, namely, the utilisation of the concept of injury which appears in the workers’ compensation statute as an instrument of exemption whether it be with respect to employment cases or non‑employment cases – and when we say cases we mean causes of action – and elevating it to something which as was expressed by Justice Keane at page 18 of the application book, about line 448.  He says:

On this view –

that is his Honour’s interpretation of the statute –

if a claim for damages for breach of duty against a person other than an employer is to be excluded from the purview of the CLA by s 5(b), the claim must be one where the employment and its significant contribution to the occurrence of the injury can be seen to be a material ingredient of the claim made against that person.

CALLINAN J:   What is wrong with that?

MR DOUGLAS:   Because as a matter of construction there are a number of things wrong with it.

CALLINAN J:   But unless you put that in, the whole phrase becomes meaningless.  You might as well not have enacted it.

MR DOUGLAS:   Your Honour, not at all.  We would submit what is wrong with it – this really leads to our second point ‑ ‑ ‑

CALLINAN J:   Well, to what cases would it apply?

MR DOUGLAS:   Indeed, the very point we seek to make.  Take an example of a cause of action against a non‑employer – an occupier, a driver of a vehicle as was the case here, and looking at this particular provision, through the focus of this provision, and adopting Justice Keane’s construction.  What are the elements of the cause of action?  I will go to them, but on Justice Keane’s construction one could, on the one hand, artificially incorporate within the claim – there is a pre‑proceeding process – incorporate within the pre‑proceeding claim a bare assertion, a mere assertion, of the fact that the claim against the occupier or against the motor vehicle driver was one which occurred in the course of employment.  That, on Justice Keane’s analysis, would be sufficient ‑ ‑ ‑

CALLINAN J:   No, it would not.  It has to be an essential ingredient.  That is different from a mere assertion.

MR DOUGLAS:   In fact, I am merely seeking to comprehend the circumstances.  If we are wrong about that – and, we submit, we are wrong, that we are just examining the construction – the alternative is this.  As Justice Keane suggests by analogy to a pleading, it would not be an essential ingredient if in truth it had no relationship.  So, if one then goes to what are the essential elements of a cause of action which, indeed, in turn, are incorporated within a claim, say, against an occupier, the essential ingredients are unquestionably the existence of the status of the person as an entrant to a place, whether invited or not, perhaps; the existence of a duty of care by reference to the circumstances; the existence of some danger, either in the operations or in the fixed nature of the place, and the failure to exercise remedial steps in relation to that; and, of course, damage.  They are the essential ingredients, to use Justice Keane’s language, of the cause of action.  They are the essential ingredients of the claim.  It is not an essential of ingredient ‑ ‑ ‑

CALLINAN J:   But you say if the entrant is doing something in the course of his employment then he is entitled to the higher damages and he would have achieved the same result as Justice Dutney did.

MR DOUGLAS:   Yes.

CALLINAN J:   So what you come down to is if it happens in the course of the employment then this does not apply.

MR DOUGLAS:   Yes, it is as simple as that. 

CALLINAN J:   But it does not say that, Mr Douglas.  It does not say in the course of employment is sufficient.  It requires that the employment be a significant contributing factor.

MR DOUGLAS:   The definition of “injury” requires that.

CALLINAN J:   Yes.

MR DOUGLAS:   But, your Honour, there is the distinction between the two judgments, the judgment at first instance and the judgment on appeal.  What we submit is, properly construed, the provision is ‑ ‑ ‑

CALLINAN J:   Look, that really makes nonsense.  Everybody knows that throughout Australia, rightly or wrongly, legislatures have set out to curb damages, decrease the level of damages and to better define the categories into which various claims can fall ‑ ‑ ‑

MR DOUGLAS:   No question.

CALLINAN J:   ‑ ‑ ‑ and also to really meet a number of decisions of various courts throughout Australia which have, I think, artificially extended liability for motor car accidents, and it is common knowledge.  We have had two cases recently from other States in the Court.  We all know that and we all know that those are the intentions of the legislation, and the explanatory memorandum and the second reading speech are to a similar effect, and I think those are some of your problems, Mr Douglas.

MR DOUGLAS:   Yes, with respect, we take a lot of heart from the extrinsic materials.  Just as an example, your Honours, in that respect, as Justice Callinan put the matter to me, on page 20 of the application book Justice Keane adverts to – this is at line 543 ‑ ‑ ‑

CALLINAN J:   I think it is more fully set out in Mr Sofronoff’s written outline.

MR DOUGLAS:   It is, but conveniently it appears there:

It is important to stress that the Government has specifically excluded all work injuries from the application of this Bill.  This exclusion will apply regardless of whether the defendant to the action is an employer, occupier or third party.

Your Honours, what we have done in our bundle of material is we have included an example of one of the interstate statutes.  We have adverted to section 3B of the New South Wales statute.  We have gone through the other statutes and it is fairly representative.  It expresses matters entirely differently.  It expresses the exclusion – and it is in the bundle before you – by reference to a claim for damages.  This statute does not express it that way and it does not express it that way, we would submit, under the aegis of an apparent intention on the face of the statute, and on the face the extrinsic material, to exclude from the Act’s purview claims, whether against employers or not, which involve a person being at work, if we can put it that way. 

The notion of significant contributing factor that your Honour Justice Callinan took me to was a notion first developed in Queensland back in 1994 in the then workers’ compensation legislation.  It was designed, in essence, to comprehend circumstances in which, really, employment had little to do with the fact that a person suffered an injury at work.  The person might have had a very severe back injury to start with or something like ‑ ‑ ‑

CALLINAN J:   I drafted some of that legislation.

MR DOUGLAS:   I am sorry, Justice Callinan, I am not suggesting ‑ ‑ ‑

GUMMOW ACJ:   That is a dangerous admission.

MR DOUGLAS:   ‑ ‑ ‑ it was badly drafted – far from it – but your Honour realises ‑ ‑ ‑

CALLINAN J:   Some of it, I have to say.

MR DOUGLAS:   Because anterior to that, the only check mechanism was the traditional one of an injury having occurred or arising out of or in the course of employment.  That is why that sort of provision was introduced, to further limit the scope of workers’ compensation being available to workers.  Your Honours, my time is not up yet, but really we have encapsulated our arguments in our written outlines and those are the submissions we put.

GUMMOW ACJ:   Yes, thank you, Mr Douglas.  We do not need to call on you, Mr Sofronoff.

The Court is not satisfied that there are sufficient prospects of success in demonstrating error in the construction placed on this provision by the Queensland Court of Appeal to warrant a grant of special leave.  Accordingly special leave is refused with costs.

AT 9.49 AM THE MATTER WAS CONCLUDED