Pravidur v Scental Pacific Pty Ltd

[2010] HCATrans 325

[2010] HCATrans 325

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M97 of 2010

B e t w e e n -

IVANKA PRAVIDUR

Applicant

and

SCENTAL PACIFIC PTY LTD (ACN 073 481 419)

Respondent

Application for special leave to appeal

FRENCH CJ
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 DECEMBER 2010, AT 10.40 AM

Copyright in the High Court of Australia

MR R.P. GORTON, QC:   If the Court pleases, I appear with MS M. NORTON for the applicant.  (instructed by MW Law)

MR S.A. O’MEARA:   If the Court pleases, I appear on behalf of the respondent.  (instructed by Minter Ellison)

FRENCH CJ:   Yes, Mr Gorton.

MR GORTON:   If the Court pleases, special leave to appeal should be granted in this case, in part because it is important to the particular plaintiff who has lost her case by reason, we say, of at least the risk of inadmissible evidence persuading the jury but more because the outcome of the case follows from an interpretation of the Accident Compensation Act which has an effect on every claim for common law damages in Victoria by a worker who has suffered injury in the course of employment.

FRENCH CJ:   The critical part is subsection (7)(a), is it not?

MR GORTON: Well, it is section 134AB(7), (8), (9), (10), (11).

FRENCH CJ:   Justice Neave focused, I think, on paragraph (a), did she not?

MR GORTON:   Yes, your Honour.  We say that what Justice Neave said in the Court of Appeal was the proper approach.

CRENNAN J:   Just to get that right, I think at application book 34, the relevant section is set out and my understanding is that Justice Neave would construe that section by in (a) deleting “that” and substituting “whether or not” and in (8) the reference to “subsection (7)(a)”, she would construe that as requiring the deletion of the little (a)?  Is that right?

MR GORTON:   I do not read it that way, your Honour.  Once you change (a) to say “whether or not” rather than “that” then every time there is an advice given which satisfies (7)(a) you will have covered the field.  If you have to give the advice when you say it is not a deemed serious injury, then always that advice will be given under (7)(a) and there is no need to change subsection (a).

FRENCH CJ:   I suppose on one view, deleting paragraph (a) in subsection (8) might be an alternative route to the same result.  A bit more strained, perhaps.

MR GORTON:   Yes, we say that.  Then you have to, in effect, delete a part of an Act and say it is not there rather than understand a word to mean something which is not, at first sight, its obvious meaning.

CRENNAN J:   Thank you.

MR GORTON:   There is a scheme, we say, as identified by Justice Neave which is designed to have the Accident Compensation Act scheme in relation to damages operate as cheaply and effectively and as efficiently as possible by putting each party, in respect of a damages claim, in a position of knowing what the evidence relevant to that claim held by the other party is at the time the application is made.  When I say at the time the application is made, when it is made is when the authority gets its information.  When the advice is given is when the worker receives information.  When the worker replies to that advice is when the authority gets its final information. 

FRENCH CJ:   You have two issues, do you not?  You have the question of whether subsection (8) applies at all to an advice that the worker is not deemed to have a serious injury and, secondly, if it does so apply, whether, in fact, it was applicable in this case to the oral testimony of Ms Hughes.

MR GORTON:   Yes, that is so.

FRENCH CJ:   You say it is the statements underlying that oral testimony that are the material relevant for the purposes of subsection (8)?

MR GORTON:   Yes, your Honour, that is made clear, we think, maybe notwithstanding that the statements were not, in fact, issued – were not, in fact, put in evidence - from paragraph 26 of the reasons of the primary judge who was held not to have approached the matter in the proper way but in paragraph 26 he was satisfied, he said:

that at the time it made its response, the WorkCover Authority, or its legal representatives, should have been aware that Lorraine Hughes was a material witness and that it would be necessary to obtain a statement from her and include the substance of her evidence in its advice to the plaintiff.  On the face of it then the prohibitions contained in subsection (11) should apply.

So the trial judge who heard the case was clearly enough satisfied that this statement that had been taken from Ms Hughes was a statement that contained the evidence that she was called to give at trial and should have been recognised - if it was not, in fact, should have been recognised by the authority or its legal representatives at the time of giving the advice that it was a serious injury and they would give a certificate for it. 

The first issue that needs determination for the purposes of the administration of the Act is whether the authority, when giving advice other than when it is a deemed injury because it is over 30 per cent, is required to give any information at all to the worker.  On the interpretation of the section by the majority there is no need for the authority to provide medical reports or any affidavits attesting to anything. 

In a case such as this where the worker is granted a certificate, it is then immediately necessary for there to be negotiations for settlement and an offer and acceptance of that offer, or a counter offer put by the worker and that, on the interpretation of the majority in the Court of Appeal, is a process whereby the worker is in an extremely asymmetrical condition to that of the authority or the employer.  The authority knows what the worker’s case is, but the worker does not know what the authority’s case is.

CRENNAN J:   Well, I think the Court of Appeal, if you look at application book 42, the Court of Appeal did consider, as I know you urge, particularly in your reply, whether or not there was an apparent drafting error, an inadvertent error, if you like, and whether it would be possible to state with certainty how the legislation should be read.  The difficulty, I think, as I see it, with your application, is that the Court of Appeal did go through these considerations.  In other words, they considered whether the legislature might have distinguished the disclosure obligations for the different gateways and really their final conclusion, I think, is to be found in paragraph 76 that they make reference to High Court authority -Smith v Queen in footnote 50 - and have really regarded your argument as one that requires rewriting the clause – rewriting the subsection.

MR GORTON:   If I might reply to that, your Honour, by saying what they have done, it seems to us is say Parliament might have intended what is written down in this Act and they have said that in paragraphs 74 and 75.

CRENNAN J:   That is right.  They are looking to see whether there is a clear, inadvertent error and they have concluded that there is not clear, inadvertent error.

MR GORTON:   On analysis of those paragraphs, your Honour, there is no rational basis achieved by what they have raised in saying that that could show there was not a general scheme.  In paragraph 74, their first proposition does not have regard to cases such as the present where leave to sue was granted by the authority.  That is not looked at in 74.  It is just put to one side.  In paragraph 74, they thought that in an application under subsection (16)(b) for leave from the court, that the information will be obtained by that leave proceeding.

That may be right as far as it goes for quantum of damages but in such a leave proceeding, issues of liability are not relevant.  The only relevant issues there are whether there was an injury and what was the severity of that injury.  So that to say a process under subsection (16)(b) would provide the information - and Parliament may have thought it would provide the information - is to ignore the fact that a process under subsection (16)(b) will not provide an area of extremely important information which will be provided if an advice is given setting out information.

Then they talk in paragraph 74 of the possibility of discovery being made in compliance with the rules will result in disclosure of the information.  Not only does discovery almost invariably come after proceedings have been issued and, therefore, after the settlement conference process with its inevitable effect on costs and costs potential in the litigation, so that it comes after that so it is too late to have any bearing on that.  Secondly, as the majority note in paragraph 85 on page 47 of the application book - halfway through that paragraph:

First, the Act does not require a party to provide statements by potential witnesses of the evidence they could give in lieu of them giving viva voce evidence in chief at the trial.  Second, Mrs Hughes’ statement was privileged and would not have been discoverable, even if discovery had been sought by the worker.

So the majority, by their own later reasoning, point out the ineffectiveness of their earlier proposition that there might be a basis on which Parliament could have deliberately legislated in this way and paragraph 75 seems to work on the basis that Parliament considered that majority times leave would be given by a deemed serious injury.  That cannot lead to a conclusion that Parliament, having recognised that there will be another area of cases where leave to bring proceedings is going to be given, chooses not to give the worker fair information in that intended lesser area, but nonetheless, real area, an area which in fact is the majority area, rather than the prediction of Parliament.

When they say that liability is a problem, it is not only liability, or the happening of an injury that is an important consideration for the provision of all the advice.  It is likely that there will be evidence held by the authority, which is relevant as to quantum as well, and both liability and quantum are essential factors to be informed about when the negotiation process is undertaken.

We say yes, that the majority of the Court of Appeal turned its mind to whether Parliament might have legislated in this way.  It put forward suggestions as to why it might have.  None of those suggestions is rational or could lead to a conclusion that Parliament would have acted in this irrational and, we would say, absurd and – I keep forgetting the words – extraordinary, capricious or irrational way.  As the majority interpret this section, it creates such an irrationality and unfairness that it is impossible to say, in our submission, that there could have been any deliberate intent and it must be a drafting error. 

If we were right in that, and if this statement by Ms Hughes was held, as it was held, without doubt by the authority at the time it granted a certificate to the plaintiff to sue, it was the evidence in that statement which was of fundamental importance to evaluating the strength and weaknesses of the plaintiff’s case, not the fact that there was a written document.  The sections require attestation by affidavit to the other material, which would be, we say, the contents’ effects set out in a statement, and it is those facts that Ms Hughes was called to give evidence of at the hearing.

FRENCH CJ:   Just looking at how you are characterising the special leave questions, you are really pitching it at the level of error in the particular interpretation and I suppose having regard to your opening remarks, an interests of justice element by reference to the impact on this particular applicant, but you are not suggesting, as I understand it, that there is some higher order error of principle in the approach to statutory interpretation adopted by the majority.

MR GORTON:   No, the principles of statutory interpretation, we say, are well understood and capable of being applied to this legislation.  Depending on a conclusion as to whether the legislation is clearly a drafting error, or might be a parliamentary intention, then you take the majority view and say it is a parliamentary intention and we do not rewrite it, or you take the minority view and say it is clearly a drafting error and it is easy to see how it is affected, as Justice Neave did.  Because the majority basis for saying it is possibly a scheme of Parliament which produces great unfairness, and that is what Parliament intended, then ‑ ‑ ‑

FRENCH CJ:   What was the unfairness, incidentally, in this case?  At trial, the witness who was called was openly cross‑examined, and there had been some cross‑examination, I think, at an earlier stage, had there not, apart from this particular witness, in relation to cross‑examination of the applicant herself.

CRENNAN J:   That is right, is it not, that the plaintiff was cross‑examined in relation to these matters?

MR GORTON:   The plaintiff was cross‑examined in relation to them, as was the witness Hughes, after an objection to the witness Hughes being

allowed to give evidence.  Witness Hughes gave evidence – the plaintiff said Hughes had seen the accident happen.

FRENCH CJ:   Yes, I am familiar with the facts.

MR GORTON:   Hughes said “I did not see the accident happen”.  The jury was asked the question did the accident happen and the jury said no.  So the evidence of Hughes would necessarily have been important to the jury decision.  If the evidence had been inadmissible, as it would have been on the analysis of the section, or the purpose of ensuring that there was a strict obligation on the plaintiff and the defendant to disclose their material at the start, then there would not have been any evidence from Hughes which was there to be contrasted with the plaintiff’s evidence.

FRENCH CJ:   Are you able to say anything more than that the plaintiff lost an opportunity to resolve the matter at an earlier stage, in the light of what Hughes was going to say?

MR GORTON:   Yes, your Honour, she lost not only that opportunity but – I was going to say the cost consequences, but they flow from losing the case in any event.  There is, in the case of the particular plaintiff, perhaps no more than a lost opportunity.  But it is an opportunity lost because the law, as it should be applied, was disregarded, and the law as it should be applied, which is of enormous general relevance to all workers in Victoria, should be reviewed by this Court.

FRENCH CJ:   Thank you, Mr Gorton.  We will not need to call on you, Mr O’Meara.

The applicant in this matter seeks special leave to appeal from a majority decision in the Court of Appeal of the Supreme Court of Victoria upholding the ruling of the trial judge that evidence adduced in the proceedings in the County Court of Victoria is not rendered inadmissible by provisions of section 134AB of the Accident Compensation Act 1985. The decision of the majority in the Court of Appeal was based on its construction of the provisions of section 134AB of the Accident Compensation Act and, in particular, subsections (7), (8) and (11) of that section.

In our opinion the application, turning as it does upon a particular provision of the Act, does not disclose a matter of general importance warranting the grant of special leave.  Nor, in our opinion, is the decision of the majority in the Court of Appeal attended with sufficient doubt to warrant such a grant.  Special leave will be refused.

Mr Gorton, I notice that in your submissions, in relation to costs, you were contending that the respondent should pay costs in any event.  Is that right, or did I misread it? 

MR GORTON:   Yes, your Honour. 

FRENCH CJ:   What is the basis for that?

MR GORTON:   The basis for that was the general importance, as we perceived it, of a proper interpretation of section 134AB applying to the conduct of both workers and plaintiffs generally throughout Victoria ‑ ‑ ‑

FRENCH CJ:   A sort of Ruddock v Vadarlis point is it?

MR GORTON:   Yes.  It was very important to everybody as well as to Mrs Pravidur.

FRENCH CJ:   All right.  Thank you, Mr Gorton.  Yes, Mr O’Meara.

MR O’MEARA:   Your Honour, the respondent seeks the costs.  The respondent, I think, referred to costs in its submissions.  That was not a matter of agreement between the parties.

FRENCH CJ:   No.

MR O’MEARA:   In the normal way I make the application for costs.

FRENCH CJ:   The ordinary order will be made.  Special leave will be refused with costs.

AT 11.05 AM THE MATTER WAS CONCLUDED