Sinclair v Deredge Pty Limited trading as Sunny Bank Plumbing Excavations

[1993] HCATrans 357

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S50 of 1993

B e t w e e n -

BARRY CLARENCE SINCLAIR

Applicant

and

DEREDGE PTY LIMITED trading as

SUNNY BANK PLUMBING EXCAVATIONS

Respondent

Application for special leave

to appeal

BRENNAN J
DAWSON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 NOVEMBER 1993, AT 3.10 PM

Copyright in the High Court of Australia

Sinclair 1 19/11/93

MR M.J. FINNANE, OC: If the Court pleases, I appear for the

applicant, with my learned friend,

MR R.G. HANRAHAN. (instructed by Orchiston

Ranzetta Finney)

MR B.R. FERRARI: I appear for the respondent. (instructed

by P.V. McCulloch & Buggy)

MR FINNANE:  Your Honour, I have had cause to be handed to

the Court an outline of what I was going to say.

The point itself, Your Honour, is a question of

statutory construction. In one sense, it is a very

short point. It does, however, affect potentially

a large number of people, that is, the people who

suffer injuries to eyes.

Attached to the outline is a table that sets

out all the relevant provisions of compensation for

permanent injuries and the particular item is on

the second page of that particular table.	The item
itself is very simple:

Loss of binocular vision (where not otherwise compensable under this Table).

The short point that we put is that there is clearly indicated a legislative intent that there

be compensation for a particular item, loss of

binocular vision, separate from the other items

specified in the table except where that particular

item, that particular loss is otherwise compensable

under the table.

Now, both Mr Justice Kirby and the majority

judges - on both sides, said it was a difficult

point of statutory construction. In our

submission, the approach of Mr Justice Meagher and

Mr Justice Cripps was to include the greater within the lesser, to say, "Well, loss of one eye

obviously leads to loss of binocular vision,

therefore, loss of binocular vision is already

included because the applicant clearly lost the

sight of one eye."

Our point, very briefly, is that the lesser

must be included in the greater, not the other way

around. Mr Justice Kirby took the correct approach

to the construction of this statute adopting a

purposive approach to the construction of a statute

which aims to have a beneficial effect. The other

construction, preferred by the majority, gives no

substance at all to the particular loss.	It means
that it is an item which has no content.

McHUGH J: That is not quite true, is it?

Sinclair 2 19/11/93

MR FINNANE: In our submission, it is, Your Honour. There

is no content to be given to that particular item

if the view of the majority prevails.

BRENNAN J: What is meant by "binocular vision"?

MR FINNANE:  In our submission, it means the loss of the

ability to see in a three-dimensional way using

both eyes.

McHUGH J: It is a faculty of using both eyes synchronously

without diplopia.

MR FINNANE: Yes, without diplopia.

BRENNAN J:  Now, if your argument is right, we can have no

doubt the situation where this benefit is added to

the loss of one eye or the loss of both eyes.

MR FINNANE:  And the loss of an eyeball and the loss of an

eye as is done elsewhere.	The loss of sight and
the loss of an eyeball.

BRENNAN J: Yes, the loss of an eyeball, the loss of an eye,

or both. Because if you lost both, you would lose

binocular vision also, would you not?

MR FINNANE: That is right.

BRENNAN J: What about diplopia? If you retain both eyes

but suffer diplopia, is that loss of binocular

vision?

MR FINNANE:  We would say, Your Honour, that may be

compensable to some form of brain damage. I think

that was something that was ventilated before the

court. I think the two concepts that were

ventilated as possibilities were brain damage and

severe facial disfigurement which would cause the

eyes to go out of synchronization.

Your Honour, it is a very short point in one

sense. If leave is granted the appeal itself would

be conducted in a very short time one could

imagine.

BRENNAN J:  You have said most of what could be said, have

you not?

MR FINNANE: That is so. It could almost be done on a

written submission from both sides. It is a

difficult matter. The judges in the majority and

Mr Justice Kirby and, indeed, the judge at first

instance all said it is a difficult matter. It

must have some content. All of them attempted to

give it some content. We say, Your Honour, it is

worthy of a full argument to determine the point.

Sinclair 3 19/11/93

I think that is all I could say. I do not think

there is any other matter that I could really put

to Your Honours.

BRENNAN J: Yes, thank you, Mr Finnane. We need not trouble

you, Mr Ferrari, because the Court is of the

decision

opinion that the correctness of the of the doubt to warrant a grant of special leave and, accordingly, special leave will be refused.

MR FERRARI:	Your Honours, we would ask for costs?
BRENNAN J:	Mr Finnane, what do you have to say?
MR FINNANE:	I do not suppose there is much I can say,

Your Honour. If the case was one before the

Compensation Court such an order would not be

granted but I think it must be different here.

BRENNAN J:  Why would it not be granted before the

Compensation Court?

MR FINNANE: Under the Workers Compensation Act - if the

case is before the court, unless it is vexatious or

frivolous or fraudulent, no orders for costs are

made against workers who fail.

BRENNAN J: That seems to be the policy of the Act, does it?

MR FINNANE: That is the policy of the Act, Your Honour.

BRENNAN J: Perhaps I will hear what your opponent has to

say about that.

MR FERRARI:  The policy of the Act has been varied from its

initial formulation to provide on reviews of

decisions even before the Compensation Court now,

that where a party is unsuccessful in achieving a

better result than had been originally ordered,

costs can be awarded, as I understand.	So that, in
my submission, there is a different policy that

applies under the Act even as it is now in respect

of review. However, in my submission, this is a

different procedure attendant upon an appeal to a

superior court and whilst the bringing of original

proceedings may be governed by that Act, the

Suitors Fund provisions have normally looked after

appeals to the stage of the Court of Appeal.

McHUGH J: But is not your simple point that this very - was

the order, "Dismissed with costs", in this case?

MR FERRARI: Yes, Your Honour.

McHUGH J: Yes.

Sinclair 4 19/11/93

MR FERRARI:  The appeal was granted with costs in the Court

of Appeal, so the Court of Appeal exercised its

discretion to grant costs against the worker. All

I wanted to say for completeness was that I am not

aware of the position here but the worker had, in the Court of Appeal, the benefit of being able to get a certificate under the Suitors Fund which is a

State piece of legislation. I think that is all I

want to put before Your Honours.

BRENNAN J: Yes. Anything in reply, Mr Finnane?

MR FINNANE:  Your Honour, the relevant provision is

section 18(4) of the Compensation Court Act. I

unfortunately do not have the provision here but

what it provides - prohibits awards of costs

against the worker except in cases of fraud, lack
of proper justification or if the application is

frivolous or vexatious.

McHUGH J: But it cannot bind us. Supposing the Act said,

"No order as to costs will be made", that cannot

operate in this Court, Mr Finnane.

MR FINNANE:  No, I appreciate that, Your Honour. I think I

covered what I said earlier with a caveat.	I was
not quite certain.

BRENNAN J: Yes. If the Court of Appeal made an order for

costs, it does not seem that that policy lasts far

further than the Compensation Court.

MR FINNANE:  Your Honour, all that I could say - I was not

at the Court of Appeal, but I would assume that no opposition was made to the application because the Suitors Fund picks up the costs of any unsuccessful

respondent.

McHUGH J: But orders for costs are made even when the

applicant has failed below in appeals. Both at the

bar and when I was a judge of the Court of Appeal,

I cannot remember anybody ever questioning the

right of the successful party to obtain an order

for costs.

MR FINNANE:  And I think that is why, Your Honour, because

it comes from the Suitors Fund. The employer is in

a different position. If the employer fails,

orders for costs can be made against the employer.

The Act applies the policy only to the worker but I

have to say it does say, in this Act - it is in the

Compensation Court Act, it is not in the Workers

Compensation Act, and that is all I can say against

an order for costs.

BRENNAN J: Yes, thank you, Mr Finnane.

Sinclair 19/11/93

In the circumstances, the order will be

special leave refused with costs.

MR FERRARI: If the Court pleases.

AT 3.23 PM THE MATTER WAS ADJOURNED SINE DIE

Sinclair 6 19/11/93