Newcrest Mining Limited v Thornton

[2011] HCATrans 337

[2011] HCATrans 337

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P24 of 2011

B e t w e e n -

NEWCREST MINING LIMITED

Applicant

and

MICHAEL EMERY THORNTON

Respondent

Application for special leave to appeal

CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 9 DECEMBER 2011, AT 1.06 PM

Copyright in the High Court of Australia

MR B.W. WALKER, QC:   May it please the Court, I appear with my learned friend, MR P. KULEVSKI, for the applicant.  (instructed by DLA Piper Australia)

MR G.T. STUBBS:   May it please the Court, I appear for the respondent.  (instructed by Chapmans Barristers & Solicitors)

CRENNAN J:   Yes, Mr Walker.

MR WALKER:   Your Honours are aware that the provisions, the West Australian version of which appear at tab 1 in the list of authorities supplied to the Court, have not enjoyed favourable notices in this and other appellate courts in this country since they were first enacted.  It has been described, to paraphrase, as a piece of law reform itself urgently in need of law reform.

CRENNAN J:   Now, there is cognate legislation in Western Australia, New South Wales, Queensland and the Northern Territory.

MR WALKER:   That is correct and we have drawn that to attention.  The parties are on common ground about what I will call the degree of commonality.  Now, the fact that the legislation has been criticised could cut both ways, or either way, in relation to special leave.  But, in our submission, the history of criticism and the nature of the language in question and the importance of this Court’s decision, for example, in Seltsam, to which we have made reference, emphasises really the importance of this Court taking on an issue of the kind we seek to raise.

KIEFEL J:   You rely upon Seltsam to achieve a measure of consistency between paragraphs (b) and (c) of the section?

MR WALKER:   Yes, very much so, and to avoid a most peculiar outcome.  As soon as I say that with this legislation I am aware that peculiar outcomes may not be as forceful in argument for this legislation as they might be usually.  But, nonetheless, this Court has shown a desire to the extent the words permit to do so, and it is exactly, with respect, as Justice Kiefel has said that the decision of this Court in Seltsam, the relation between paragraphs (b) and (c), illustrates an area entirely unregarded by the West Australian Court of Appeal but perhaps more significantly by the New South Wales Court of Appeal.

CRENNAN J:   Well, certainly the members of the New South Wales Court of Appeal in Nau v Kemp 77 NSWLR 687 were conscious of the implication or the fact that their construction would lead to different approaches to consent judgments as between (b) and (c).

MR WALKER:   Yes.

CRENNAN J:   So certainly that was elaborated upon but are you saying that the Seltsam point, if I can put it that way, was not adverted to?

MR WALKER:   That is correct.  May I deal with two aspects arising from what Justice Crennan has just said.  The first has to do with the effect on settling, and we are talking about the process of settling because once there is a settlement then the law applies, or not, in the contended fashions.  Seltsam is, of course, a decision which shows an operation of the statutory law requiring practitioners to be acutely aware of it in a number of ways beyond mere drafting in order to protect their client’s interests. 

There is no indication whatever that it has had an undesirable effect, or a perverse effect, on the rate of settlement on the degree to which people are eager to, for example, get rid of issues that ought not to be contested or take time in Court.  I will come back to that ‑ ‑ ‑

CRENNAN J:   Of course, one animating factor with some of the judges in Nau v Kemp is that they saw themselves as achieving an equality, if you like, between plaintiffs who settled without a consent judgment and those who settled with one.

MR WALKER:   But, in our submission, at the risk of violence to language.  Now, I make that last comment conscious that all three of their Honours proceeded on the basis of a reading of the language, but perhaps one way of highlighting the difficulties with the Nau decision and why the reliance on it not being plainly wrong in Western Australia makes this an issue right for this Court, where no inhibition of a requirement for plainly wrong will matter, why it is well presented by this case. 

Could I take you to Nau, which is tab 6 of the bundle of authorities? At 77 NSWLR 733, paragraph 203, in Justice Campbell’s reasons, an argument headed “Ripper v Gatenby” is dismissed because, and I quote:

That reasoning is not applicable to the present case, where (subject to the point about whether a judgment resulting from the settlement counts as “damages awarded”) an amount was awarded by way of damages in the first of the actions in question.

There is really no satisfactory explanation as to why, on the very next page, in the commencement of consideration of that parenthesised point, one at page 734, paragraph 206, does not find a supply of an answer to the question of:

whether a consent judgment is one by which damages are “awarded” –

in the perfectly ordinary, expedient and legal colloquial use of the expression noted in paragraph 203.  It is sufficed in 203 in a legal context using the language naturally in that context to say that this is a case where an amount was awarded by way of damages.  In our submission, at the heart of the very copious reasoning expressed in Nau there are linguistic choices of that kind made which, in our submission, are unconvincing, coupled with the fact that what I call the Seltsam point, the relationship between paragraphs (b) and (c), the anomalous and apparently unjust preclusion of contribution possibilities to which we have drawn attention in our written submissions, this becomes the kind of case where really it is only this Court, bearing in mind the existence of Nau and the Farah v Say‑Dee point, it is really only this Court that can unravel these anomalies.

Your Honours, in relation to settlement, this is to be recalled as a very important point.  These provisions apply as well to personal injuries actions as to others, indeed in practice, probably more frequently.  Personal injuries actions are very often dealt with, but ‑ ‑ ‑

CRENNAN J:   I think we will not trouble you further for the moment.  We will call upon the respondent to tell us why there should not be a grant of special leave, bearing in mind two matters, the public importance, in relation to the question of statutory construction, having regard to the fact there is cognate legislation in several places and bearing in mind what I will call the Seltsam point raised in paragraph 3 of the applicant’s reply and the difficulties that will flow in respect of claims for contribution from the construction which you urge.

MR STUBBS:   Your Honour, the situation is in the applicant’s reply they highlight as a reason for special leave being granted the injustice that would arise and raise the Seltsam matter in relation to that injustice. What is interesting, however, in relation to that is that the Court of Appeal in its decision at page 39 of the application book at 40 addresses a practical resolution of the issue where it says that:

If parties were prepared to agree on a settlement sum, it is unlikely that there would be a failure to settle merely because the plaintiff refused to agree to a consent judgment for the agreed amount.  The matter could easily be resolved by the parties agreeing to a judgment dismissing the action once the agreed sum had been paid.

Now, that suggestion by the court, in fact, means that the suggested injustice that arises in the applicant’s reply at paragraph 2, in fact, will not be overcome in any sense by the suggested interpretation that the applicant makes because really what then happens quite simply is, in effect, in reliance upon the Seltsam decision the matter will simply become one of an insistence upon the dismissal of an action by a consent judgment in the terms if you like suggested by the court in the Court of Appeal with the net result that, in fact, the plaintiff in those circumstances will quite simply be able to take up the action against other defendants, in the circumstances.

KIEFEL J:   In relation to the applicant’s reliance upon James Hardie v Seltsam 196 CLR 53, there was very strong dissent in relation to that matter just by Justice Kirby, with Justice McHugh agreeing. Are you contending that Seltsam should be read down or that there is some way that it should be disregarded?

MR STUBBS:   No, your Honour.  What I am saying is I understand it and I submit the situation is that Seltsam itself effectively means, as I say, on the basis if you like of the counsel of the Court of Appeal that the injustice or perceived injustice that is raised in clauses 2 and 3 of the applicant’s reply would not be resolved by the interpretation which they seem to be seeking to promote. 

What we would say quite simply, your Honour, is that insofar as there is a lack of harmony or was a lack of harmony and as my friend said in a piece of legislation that is notorious for its problems, a piece of legislation as he said that is in itself in need of reform, this decision in Nau and the subsequent decision by the Court of Appeal in adopting the reasoning in Nau – and I say that advisedly because not only was it a matter, in my submission, where the Court of Appeal considered that they had to be persuaded that the decision in Nau was clearly or plainly wrong, but you will see at page 39 of the application book in the decision at 20 the court says – and this is in relation to its observations about Nau:

This reasoning is persuasive –

So that, notwithstanding the fact that the issue of some small problems or lack of cogency in relation to a small issue, we would say, is raised, the court has found it persuasive in the circumstances.  What we say is that the decision in Nau v Kemp is highly persuasive and well organised and well reasoned.  We adopt, in its entirety, the reasoning contained therein and any other approach to the interpretation of this provision will not resolve any perceived injustice that has been raised by my friend.  It will simply, if I can put it this way, be circumvented.

If there is an injustice to be found then it is best resolved, in my submission, by appropriate amendment by the legislature.  So that, in fact, what has happened is that Nau v Kemp and this decision before your Honours has, in fact, harmonised and given solidity to the state of the

law in relation to this provision and has, in fact, provided justice because it has allowed the plaintiff in this case to potentially achieve the full measure of his damages. 

So that what we say, in the circumstances, is that there is simply no need for anything to be done by way of this appeal and that it is not an appropriate case for the granting of special leave in the circumstances because the decisions, in consideration, if you like, have in fact harmonised and given solidity to the law in this respect and any other interpretation will not resolve any perceived injustice that my friend has raised. 

There is really nothing further that I can say in relation to this matter beyond what is said in our submissions and to reiterate that the reasoning in Nau v Kemp and the persuasiveness of that reasoning to the Court of Appeal should commend itself to your Honours as the solution to the problem that is posed by this appeal and, therefore, that special leave should not be granted.  If your Honours have any questions I am happy to try and answer them, but that is all I really have to say.

CRENNAN J:   Well, what about the example which the applicants mention where a plaintiff deteriorates between the first set of proceedings and the second set of proceedings?

MR STUBBS:   I would answer that, your Honours, on the basis that that is an issue ultimately, of course, for appropriate amendment by the legislature.  However, it highlights one thing - that in the circumstances highlighting one issue does not highlight all the other possibilities.  This can be flipped to the advantage, if you like, of the defendant in this case.  There are circumstances in which one can arrive at a position where the second of the defendants in line would in fact benefit from the situation. 

So we would say that the example given does nothing, in fact, to provide any basis on which to grant special leave.  It simply highlights the possibility that this piece of legislation, as accepted by my friend as being perhaps itself in need of amendment, should be dealt with by the legislature rather than by way of the Court dealing with it in an appeal.

CRENNAN J:   Thank you…..any reply, Mr Walker?  There will be a grant of special leave in this matter.  What is your calculation in relation to the time?

MR WALKER:   Just over half a day.

CRENNAN J:   Just over half a day.  Very well, there will be a grant of special leave hearing for one day.  Thank you. 

AT 1.23 PM THE MATTER WAS CONCLUDED