Rochford v Dayes

[1988] HCATrans 303

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl04 of 1987

B e t w e e n -

DENNIS ANTHONY ROCHFORD

Plaintiff

and

EDWARD DAYES

First Defendant

GEORGE ARCHER

Second Defendant

NORTH QUEENSLAND BACON

COMPANY PTY LTD

Third Defendant

. WORKERS ·cOMPENSATION BOARD
OF QUEENSLAND

Fourth Defendant

Application by defendants to set

aside the writ as against third

Rochford

and fourth defendants and for

remitter

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

_._..., SYDNEY ON FRIDAY, 2 DECEMBER 1988, AT 9. 20 AM

(Continued from 10/11/88)

Copyright in the High Court of Australia

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MR B. MOORE, Solicitor: If it please the Court, I act as

agent for the solicitor for the plaintiff. (instructed by

:Martin & Melville, through their city agents, Dupree & Associates)

MR A.R. ASHBURNER:  May it please, Your Honour, I appear for

the defendants. (instructed by Hunt & Hunt)

Your Honour, I have discussed the case by

telepho·i:i.e witb Mr Jensen yesterday and shortly again

this morning with my learned friend and the position,

Your Honour, is this that the fourth defendant,

the Workers Compensation Board of Queensland is, by consent, to disappear from the proceedings. I

should inform Your Honour shortly of the reason

for that in view of the discussion on the last

occasion. Your Honour, it appears that under the

Queensland WORKERS COMPENSATION ACT section 9A(2A),

the only basis upon which the plaintiff could sue
the Workers Compensation Board of Queensland is,

to summarize the section, if the employer is dead

or cannot be served with a process or if being a company

it no longer exists and Your Honour will recall perhaps
that on the last occasion the formal admission was
made that the third defendant, the company North

Queensland Bacon Company Pty Ltd ,was at all material times the employer and that admission has been accepted

and is now connnon ground. So, upon that footing it

appears that there is no basis upon which the plaintiff

could succeed against the fourth defendant and,

following the discussions yesterday and again this

morning there is now consent that that party is to

be dismissed from the suit with each party to bear

its own costs in that regard.

HER HONOUR:	Do you appear for the fourth defendant?
MR ASHBURNER: Yes, Your Honour, I do.	I appear for each of the

four defendants, Your Honour.

HER HONOUR: Yes, thank you.

MR ASHBURNER: That, Your Honour, leaves then the three other

defendants, the first two of whom, as Your Honour

will recall, are individuals and the third of whom is

a company. I understand from my learned friend,

Mr Jensen, that it is his desire that the proceedings

be referred into the Full Court in order that the

argument he foreshadowed on the last occasion might

be considered. As to that, Your Honour, it is plainly

inappropriate, in my submission, to deal with that,

perhaps, this morning on a mention for this reason,

Your Honour - and I should say, Your Honour, I have

not told this to Mr Jensen; we had not thought it

through fully at the time when I last spoke to him but,

Your Honour, it does appear that the proposition for

which my learned friend contends is inconsistent with

no less than three decisions of the Full Court of the High Court and that the general line of authority has

very recently been the subject of consideration by

the Full Court in CROUCH V THE COMMISSIONER FOR RAILWAYS

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Rochford

where the Full Court, of course, declined to reconsider

that general line.

The three decisions of the Full Court to which I

refer are COX V JOURNEAUX (No 1), 52 CLR 282; the

second is WATSON AND GODFREY V CAMERON, 40 CLR 446

and the third is REG V ANDERSON EX PARTE BATEMAN,

53 ALJR 165. Your Honour will recall that in COX V

JOURNEAUX Mr Justice Dixon, at first instance, put

the plaintiff to an election of either having the

corporate defendant dismissed from the suit or having

the whole suit dismissed and that decision was

upheld by the Full Court. In the other two cases

to which I referred, the decision of the Full Court

in each case was that there was necessary that there

be a complete diversity of residence between those

on one side of the record and those on the other side

and the short submission that we would make - it is

inappropriate to develop it now, but the short

submission would be that each of those three decisions

is inconsistent with the proposition for which my

learned friend seeks to contend. I do no more,

Your Honour, at this stage than call attention to that

argument because it does, in my submission, raise a

very real question as to whether it would be appropriate

as an exercise of Your Honour's discretion to refer

it into the Full Court. Since I have not alerted my

learned friend, Mr Jensen, to that possibility,

Your Honour, perhaps it is desirable that we have the

opportunity to discuss it in case there can be some

measure of agreement reached about it.

HER HONOUR:  Normally, of course, one would state a case,

as it were, yes.	Has there been any response from
the Attorneys-General?

MR ASHBURNER: There has beenrome, Your Honour. As I understand

it the response from those from whom my instructing

solicitors have heard informally is either that they

do not appear to be particularly interested or that they would only be interested in the event that the

-matter goes to the Full Court. But each of those

responses was, in a sense, a preliminary response so

we. would not assert that in any case there has been

any final or binding decision reached about that.

HER HONOUR:	Yes.
MR ASHBURNER:	Your Honour, the result of that material is

that perhaps it ought to be listed for mention again

at a convenient time.

HER HONOUR:  I have a matter listed next Friday, I think - I am

sorry, Friday week. Next Friday the Court will be in

Canberra. Is the 16th - we are then into vacation, but is the 16th an appropriate mention time?

MR ASHBURNER:  It would be convenient to me, Your Honour. I do

not know - - -

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Rochford

MR MOORE:	Yes, it would be convenient, Your Honour, certainly.
HER HONOUR:	It would be a brief mention only, would it not?
MR ASHBURNER:	Your Honour, that would very much depend upon Your Honour's ruling on the matter. It is possible,
Your Honour, in the event that my learned friend and
I are not in agreement and in the event that Your Honour
regards that as the appropriate time, that we might then argue the not very lengthy question of whether it is or is not appropriate to state a case, otherwise
take the matter to a Full Court.  I would think,
Your Honour, that that would not be an argument
that would take very long.

HER HONOUR: If I listed it for 9.00 - I am assuming this is

consented to, Mr Moore - - -

MR MOORE: Yes, it is, Your Honour.

HER HONOUR:	- - - by reason of the body language from your nodding in agreement. If I listed it at 9.00,
would that be sufficient?
MR ASHBURNER:	That would be convenient to me, Your Honour.
HER HONOUR:	The other matter being listed for 10 o'clock.
MR ASHBURNER:	Your Honour, I would think we could say everything

that would need saying amply in that time.

HER HONOUR:  Mr Moore, did you wish to say anything?

MR MOORE:  No. I should perhaps formally confirm what my

learned friend says that we will not be seeking to

proceed against the fourth defendant.

HER HONOUR:  Yes. !..shall, at this stage, make an order by

consent that the proceedings against the fourth

defendant be and are hereby discontinued, each party

to pay their own costs.

MR ASHBURNER:	May it please Your Honour.
HER HONOUR:	And otherwise adjourn the matter for further

mention at 9 am in Sydney on 16 December.

MR ASHBURNER:  It might perhaps be desirable if we formally

notified. various Attorneys-General of that step.

HER HONOUR:  Yes. I do not know that it is necessary. I think -

they have been given notice. That is all that the Act requires but I will leave that to you - to the

parties. We will adjourn sine die.

AT 9.30 AM THE MATTER WAS ADJOURNED UNTIL

FRIDAY, 16 DECEMBER 1988

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Rochford