Peters v The Commissioner for Railways for the State of Queensland

[1989] HCATrans 87

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B38 of 1988

B e t w e e n -

THOMAS WALLACE PETERS

Applicant

and

THE COMMISSIONER FOR RAILWAYS
FOR THE STATE OF QUEENSLAND and
STATE C01:1PENSATION BOARD FOR

THE STATE OF NEW SOUTH WALES

Respondents

Notice of motion to remove whole

of the matter

MASON CJ
BRENNAN J

GAUDRON J

Peters

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 APRIL 1989, AT 9.36 AM

Copyright in the High Court of Australia

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MR K.R. HANDLEY, QC: I·appear with MR A.R. JOHNSON, if the

Court pleases, for Peters. (instructed by

Messrs Stuart, Cook & Braham)

MR A.R. GRAHAM, QC: If the Court pleases, I appear for the

first respondent, the Commissioner for Railways for

the State of Queensland, with my learned friend,

MR R.F. WILSON. (instructed by the Messrs Abbott

Tout Russell Kennedy)

MR J.S. DOUGLAS: If the Court pleases, I appear on behalf

of the Attorney-General for the State of Queensland) intervening. (instructed by the Crown Solicitor for

Queensland)

MR K. MASON, Solicitor-General for the State of New South Wales:

I appear with my learned friend, MR M.L. SNELL, for the second respcnd£nt, the State Compensation Board

for New South Wales. (instructed by J.Kernick,

Solicitor to the Board). And I appear with my learned friend, MR L. KATZ, for the Attorney-General for

New South Wales, intervening. (instructed by

the Crown Solicitor for New South Wales.

MR HANDLEY:  Your Honours, I had thought that I. had made an

arrangement with my learned friend, Mr Graham, which

would dispose of this matter very simply this morning. that the whole matter should be sent back to the

State Compensation Court of New South Wales, including

the constitutional questions. We do not consent to that. What we would ask the Court to do·is to lift

up the whole of the case and send all the workers

compensation questions back to Judge Moroney in

the Compensation Court, who is part-heard for

determination, keeping the constitutional questions

in this Cou=t, ~nd if and when, in the light of

Judge Moroney's findings of fact and law on the compensation question, the constitutional questions

become moot, so be it. If they become live in the

decided by this Court in the first instance without	light of the findings, we would wish them to be
the benefit of Judge Moroney's consideration of those constitutional questions. So, the notice of
motion which - - -

MASON CJ:  By "the constitutional questions" you mean which

questions in the documents?

MR HANDLEY:  The notice of motion which the Queensland

Commissioner for Railways has filed but which he
does not move on now and which Peters would wish to
adopt and move on are questions 4 and that is a State's

State question, Your Honours, but of a kind which falls within section 75(iv) of the CONSTITUTION and they relate to the power of the State of New South Wales to bind the Crown in right of the State of Queensland

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either at all or retrospectively or by reference to

statutory fictions. And then if, as a matter of

construction, New South Wales law, the 1987 Act,

binds the Crown in right of the State of Queensland,

whether such a law is a law for the peace, order and

good government of New South Wales having regard to

the connectionswhich this transaction had with Queensland

as well as the connections it had with the State

of New South Wales.

Question S(a) and (b) are the corresponding

questions to those originally removed by this Court

on the application of the Attorney-General for

Queensland in relation to the 1987 New South Wales WORKERS' COMPENSATION ACT. Then questions 6 and 7

are what I call compensation questions which it is

proposed to remit to Judge Moroney in the Compensation Court and then question 8, slightly re-formulated, are

questions of the kind corresponding to those originally
removed by the Attorney-General for Queensland into this

Court, adding a new question, (b)(ii), in relation to

the possibility that a retrospective State law is

picked up by section 64 as well as ordinary State law.

That is a new question but to remain in this Court,

on our application, if possible. And question 9, of
course, is a compensation question to be sent back to

the Compensation Court.

It may be, Your Honours, that the Court would

not wish to make final orders today in relation to

any of these questions but the only order it

should make today would be, if minded to do so, to

remove the whole of the cause into this Court and

then to remit the matter to a single Justice to

examine the questions before the single Justice made

an order remitting the compensation questions to the

Compensation Court of New South Wales.

MASON CJ: But, Mr Handley, why should we remove the whole of

the cause into this Court? We normally do not do

that. We remove such questions as may be appropriate

having regard to the requirements of the section

and to, as it were, the status and position of this

Court.

MR HANDLEY: Certainly, Your Honour.

MASON CJ: And after all, these proceedings are proceedings

brought under an Act which creates a specialist court

with specialist jurisdiction. Why should not the cause,

as such, remain with the Compensation Court, this
Court attending to those questions which are appropriate

to the exercise of its jurisdiction?

. MR HANDLEY:  Your Honour, as I read the JUDICIARY ACT,

Judge Moroney cannot do anything once any questions in

the case before him have been removed to this Court.

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His jurisdict~on is to be exercised by the making of an

award and while any of the, live questions in the cause

pending in the Compensation Court are up in this Court,

he cannot do anything and the power of this Court to

give directions under section 41 seems to be limited

to directions in the cause that is removed - or that

part of the cause that is removed to this Court and

the power of the Court to give directions for

Judge Moroney to get on with the other issues
seems to depend upon either vacating the order for

removal so that the whole cause is vested back in him

or else removing the lot and then sending the issues

of fact and compensation questions back to him. We

do not ask the Court to decide the constitutional

questions if decisions on the compensation questions

might make them moot.

BRENNAN J: Is there any appeal from the Compensation Court to

any other court?

MR HANDLEY:  Yes, Your Honour, there is an appeal under State law

on questions of law to the Court of Appeal. There is no

appeal on questions of fact under State law but if, as

we allege, Judge Mc,roney is exercising federal

jurisdiction, there is an appeal by special leave to

this Court direct from Judge Moroney under section 39(2)(c)

of the JUDICIARY ACT on fact and law by special leave.

BRENNAN J: And he would exercise federal jurisdiction if we

took up the cause and then remitted questions back to

him?

MR HANDLEY:	On our submission, Your Honour, he is exercising federal jurisdiction anyway because it is a suit between
a resident of one State and another State.

BRENNAN J: Yes.

MR HANDLEY:  We certainly do not ask this Court to decide any

questions of fact or any questions of what I might

call State compensation law but it seems to us that the only

way that we can, as it were, break the Gordian knot - there are only

two ways that the Gordian knot can be broken and that is either to

vacate-the order for rem:)Val or to remit the whole case to Judge llironey.

MASON CJ: Would that not be the sensible thing to do in the

circumstances, Mr Handley, to vacate the order for

removal; let the matter proceed before the Compensation

Court and then approach this Court?

MR HANDLEY: Well, Your Honour, that puts the parties to the

expense of debating the constitutional question before

the Compensation Court, a course which we do not - - -

MASON CJ: I can understand the problems associated with that

but, after all, it is unusual litigation in which you

can get a matter straight before the High Court, it is
onl~ where constitutional questions arise and the Court

is compelled to remove the matter into this Court. But

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putting that ~o one side, in order to overcome the

difficulties that quite clearly arise now, would it

not be sensible to go back to the Compensation Court?

MR HANDLEY:  Your Honour, in effect, that is our application

on everything except the constitutional questions.

MASON CJ:  But you only want the constitutional questions

determined in the event that it becomes ultimately

necessary to determine them.

MR HANDLEY: Certainly, Your Honour, and if, in the light of

Judge Moroney's findings, the constitutional questions

become moot, so be it. This Court is not further

troubled with the matter except, perhaps, on appeal

from the Court of Appeal.

BRENNAN J: That means that the present discussion is really

calculated to determine whether or not the parties

should litigate the constitutional questions before

Judge Moroney

MR HANDLEY:  Yes, Your Honour, that is the question. We see

that as, with all respect to Judge Moroney, not a

particularly useful exercise of time and money

so far as these clients are concerned - at least,

as far as my client is concerned and we would ask

that all the compensation issues where that court

has special expertise and skill be sent back to him.

The Court will not be troubled with the constitutional

questions or the other questions unless and until

we have the findings of the Compensation Court on

the State compensation issues.

BRENNAN J: It may be, of course, that the nature of the

constitutional issues might be illuminated by a
judgment from one who understands the compensation

legislation.

MR HANDLEY:  I am sure that will be right but whether they

will be illuminated by a judgment of the same judge

on the constitutional questions - I mean, the

validity of section 64 of the JUDICIARY ACT, so far as

the States are concerned, has been around for a long

time. It is obviously an appropriate question for this

Court to decide.

GAUDRON J:  Mr Handley, could I ask this: question 3 in the

schedule to the notice of motion

MR HANDLEY: It is a retrospectivity question, Your Honour.

GAUDRON J: Yes. That is a question of construction, is it,

pure and simple?

MR HANDLEY: It is.

GAUDRON J: .And if that is answered "No", do the constitutional

questions then arise including the ones that were previously

removed?

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MR HANDLEY:  They could, Your Honour, because there is the

question - if the 1987 Act had never been passed,

we would have the question of whether the 1926 Act
would be binding on the Queensland Commissioner for

Railways via section 64, and then there is the

question of whether the State's repeal of the 1926

Act in 1987, four years after the injury, can divest a

federal right that is accrued under section 64.

That involves a question of construction of section 64

and of its ambulatory operation. There is no doubt

some of these questions could be answered in a way

which would render the constitutional questions moot

and that is why we do not ask the Court to decide

the constitutional questions first.

GAUDRON J: And if it is answered "No", do the earlier

questions fall for decision?

MR HANDLEY:  No, Your Honour, but then the later questions

will fall for decision under the 1926 Act.

GAUDRON J:  Yes. But would there not then need to be other

factual findings in relation to the 1926 Act?

MR HANDLEY: Certainly, Your Honour, they are raised by

question 6, and in relation to it, question 7.

GAUDRON J:  So, in one sense that question is going to determine

what questions then have to be answered.

MR HANDLEY:  Indeed. You have got a set of constitutional

questions in relation to the 1926 Act and the impact

on those of section 64 of the JUDICIARY ACT and you

have got another set of questions relating to the

State and federal constitutional law aspects of the

1987 Act including the peculiarity that it seems

that New South Wales purported to legislate

retrospectively in 1987 so as to bind the Crown in

right of Queensland or, indeed, any other Crown and

that throws up some special issues if we get into

the 1987 WORKERS' COMPENSATION ACT but it seems to

us, with respect, that we are either under one Act

or the other or possibly, because of State law,

under some amalgam of the two but except on issues

of fact we cannot fail under both. When I say

"issues of fact", issues of deemed worker and

questions relating to that. So that unless we fail

on the compensation merits, we will be either

under one of the Acts, either the 1926 Act or

the 1987 Act. If the Court pleases.

MASON CJ: Yes, thank you, Mr Handley. Mr Graham?

MR GRAHAM:  Your Honour, we would respectfully submit that

it may be appropriate to call on the Attorney for the

State of Queensland first as it would be my ant_icipation that we would simply agree with his submissions on this issue.

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MASON CJ: Very well. Yes, Mr Douglas?

1"IR. DOUGLAS:  If the Court pleases. When this application was

originally made on behalf of the Attorney to remove

part of the cause into this Court, it seemed fairly

clear that a section 64 question could arise almost

inevitably on the proceedings below. With the questions

as they are newly formulated, taking into account the

1987 WORKERS' COMPENSATION ACT, my instructions are

to ask for the original order removing part of the

cause to be vacated really for the reasons which

have already been canvassed, that the Compensation

Court needs to look at the matter, needs to look at

the facts and the law and it may well be that the

constitutional question just does not arise so that

this Court's time should not be taken up with it unless

it becomes necessary to do so.

MASON CJ:	Thank you, Mr Douglas. Yes, Mr Graham?
1"IR GRAHAM:	Yes, Your Honour, we adopt my learned friend's

submission in that regard.

MASON CJ:	Yes.	Mr Solicitor for New South Wales?
1"IR MASON:	We are neutral, Your Honour.	I say that on behalf

of both the clients I represent here.

MASON CJ: Well, being neutral, you are in a position to give

the Court objective assistance. Admittedly, that is

an unusual role for you to adopt.

1"IR MASON:  We certainly would not wish any constitutional

question to be determined unless and until it became
necessary. Depending on how the facts are found,
the Court may be catapulted~into a State constitutional

issue to the exclusion of a federal one and vice versa.

So, certainly, in our submission, the matter should be

remitted to Judge Moroney.	The only point of dispute
seems to be whether he is somehow or other hampered

in determining the factual issues by the legal

constitutional issues being left out of his control

by being kept up here and, secondly, whether, in

effect, he should be invited to have a first crack

at whatever constitutional issue seems relevant in

the light of his fact finding.

Now, it certainly would take up a lot of

unnecessary time if the constitutional issue is

argued before the judge because it seems almost certain

that whoever lost would want to take up the matter

in this Court or in the Court of Appeal. So, on balance,

the preferable view would be to remit it in

such a way that only the interpretation and factual

issues are before His Honour.

MASON CJ:	Y,es, thank you, Mr Solicitor.	Mr Handley?
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MR HANDLEY:	Your Honour, as far as my client is concerned, he was a timber getter of modest means and he does
not want to have to litigate these matters any more
often than he has to, than absolutely necessary and if we can be spared the cost of a constitutional case before Judge Moroney we would seek that protection.

GAUDRON J: That may be a matter against which you can safeguard

yourself by procedures adopted before Judge Moroney,

may it not? That is to say, it may be that the

matter can proceed in such a way that - - -

MR HANDLEY: In stages.

GAUDRON J:  - - - if constitutional questions do squarely

arise, application for removal can be renewed.

MR HANDLEY:  That is so but I do not believe that there is any

preliminary power to determine preliminary questions

in the Compensation Court such as exists in the Supreme

Court and the Federal Court and he cannot make an award

unless he decides everything and the questions that

we ask the High Court to retain are very important

questions.

GAUDRON J: Is there a stated case procedure in the Compensation

Court?

MR HANDLEY:  There is, Your Honour. There is an appeal by a

stated case on the question of law to the Court of

Appeal from Judge Moroney.

MASON CJ: Is there a stated case procedure otherwise than by

way of appeal?

MR HANDLEY: There is. The judge has a discretion to state a

case to the Court of Appeal on any question of law but.

frankly, Your Honour, on these questions we do not wish

to - Mr Peters, who I say is a badly injured timber

getter, does not wish to litigate the constitutional

MASON CJ: Yes, I can follow that but that may be an incident	questions more than once if he can possibly avoid it.
of commencing proceedings which involve serious constitutional questions.
MR HANDLEY: Indeed.	'
MASON CJ:	The case may be such that it is necessary to have

those questions litigated in more than one court.

MR HANDLEY:	Yes. Well, if that is necessary, Your Honour, we have to accept it but if it is not necessary,
and we submit it is not, we would at least ask the
Court not to burden us with constitutional litigation
of this character in front of the Compensation Court
of ~ew South Wales and after Judge Moroney's findings

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of fact and law on the questions which we propose

to be remitted to him are known, this Court retains

a complete discretion or a single Justice of this

Court, if the matter is remitted as a result of the
order today to a single Justice, has a discretion as

to how the matter should proceed thereafter and

we would ask the Court to proceed in that way in

order to avoid unnecessary litigation in multiple courts on difficult constitutional questions which are likely to come here any way.

MASON CJ:	In the light of the difficulties which have been canvassed in argument, the Court considers that it
is appropriate in the circumstances of this case to vacate the existing order for removal of the proceedings
into this Court. That course is supported by counsel
for the Attorney-General for Queensland on whose
application the Court made an order for removal as a
matter of course.  The existing order for removal into
this Court will therefore be vacated.

MR HANDLEY: What would the Court propose to be done about

costs consequent upon this game of "snakes and ladders"?·

MASON CJ:  The Court is not, at the moment, proposing to do

anything about costs, Mr Handley.	The Court, of
course, will give consideration to	any application
that is made for costs. Yes, what	do you have to
say about costs, Mr Handley?

MR HANDLEY:	We have been brought here by the Attorney-General for Queensland who has now sent us back to where we
were when he brought us here. I would submit that
the Attorney should be ordered to pay the costs in
this Court.

MASON CJ: What do you say to that, Mr Douglas?

MR DOUGLAS:  My recollection is that everybody was willing to

come to the High Court initially. In fact it was, I

think, a consent application and at that stage thought

of as being a speedy and expeditious way of resolving

the question about section 64. The fact that my

client brought the application as an intervenor, in

my submission, really should not affect the question

of costs and, ·really, the need to vacate the - - -

MASON CJ:  If you were an intervenor in the proceedings, you

came, as it were, from afar and put the parties in a situation where the court was bound to make an order

for removal; the court had no discretion, so it is

understandable that the parties consented to the

application. They could not have opposed it.

· MR DOUGLAS:  That is true but from recollection it seemed to be

the situation that the parties welcomed the opportunity

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to have that issue litigated in this forum and

the - - -

MASON CJ: Yes. Well, it was certainly consented to,

Mr Douglas.

MR DOUGLAS:  Yes. And the unfortunate need to have that order

vacated arose, really, because of a subsequent

discovery that there had been amending New South Wales

legislation which, of course, had not arisen before

and had not been litigated by the parties before the

Compensation Court.

MASON CJ: Apparently everyone was ignorant of the fact that

there were provisions in the 1987 statute that bore

on the case.

MR DOUGLAS:	That is right, yes, and, in my submission, the appropriate order is no order for costs.
MASON CJ:	Mr Solicitor, unfortunately, the State of New South

Wales is not a party otherwise we could,perhaps, the State of New So~th Wales to shoulder the

responsibility for costs having regard to the fact

that no one seems to know what the State of New South

Wales law is.

MR MASON: Yes. Well, the - - -

MASON CJ: There is no need to respond.

MR DOUGLAS:	I have just been informed by one of my learned friends that there was no amending Act when it was
argued before the Compensation Court so I cannot blame
them for that.

MASON CJ: The Court considers that the State of Queensland

should pay the costs of Mr Peters, otherwise there will

be no order for costs. Therefore, the order the Court

makes is that the existing order for removal into this

Court is vacated. The State of Queensland will pay the

costs of Mr Peters.

MR DOUGLAS: If the Court pleases.

MR HANDLEY: If the Court pleases.

AT 10.02 AM THE MATTER WAS ADJOURNED SINE DIE

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