State Authorities Superannuation Board v Walker

[1990] HCATrans 100

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S23 of 1990

B e t w e e n -

STATE AUTHORITIES SUPERANNUATION

BOARD

Applicant

and

GWEN JEAN WALKER

First Respondent

and

UNITED DENTAL HOSPITAL OF SYDNEY

Second Respondent

Application for special leave

to appeal

Walker

MASON CJ
BRENNAN J

DEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 NAY 1990, AT 11.40 AM

Copyright in the High Court of Australia

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MR D.M.J. BENNETT, QC: May it please the Court, I appear for

the applicant with my learned friend, MR I.J. JOHNSTON, QC.

(instructed by S.W. Spender, State Authorities

Superannuation Board)

MR W.R. HAYLEN:  May it please the Court, I appear for the

first respondent. (instructed by Messrs Jones

Staff & Co)

MR J. KILDEA:  May it please the Court, I appear for the second

respondent. (instructed by Messrs Bartier Perry

& Purcell)

MASON CJ:	I think we might hear from the respondents first,
Mr Bennett.

MR BENNETT: If Your Honours please.

MASON CJ: Yes, Mr Haylen.

MR HAYLEN:  I wonder if I might hand up a short outline of

submissions.

MASON CJ: Yes. Mr Haylen, can I ask you a question about the

paragraph numbered 4(v) on page 3 where the statement

is made that Dr Walker:

retired from her employment at the United

Dental Hospital -

It is then said:

Her ability to obtain other benefits equivalent

to the disputed superannuation benefit has

been lost. This lost ability is due to the

dilitary behaviour of the Applicant.

Now, there is no evidence to that effect, is there?

MR HAYLEN:  No, Your Honour, I think that is true. I think it

is really this - this is the only thing that can be
said in support of it.	The history of it is such

that between being successful at first instance and

in the Court of Appeal, and at her stage of

employment and her age, she was really faced with

this option, whether she would hold on to the benefit
that she had succeeded in both courts, or whether

she would make some other arrangements to give her some equivalent benefit while in employment, while she had the money to do it. And the way in which this

has dragged on, and the way in which the applicant

for special leave has conducted itself, has made it

impossible for that really to take place. She is

not in possession of an infinite financial resource
and her ability, therefore, to make alternative

arrangements to give her some equivalent benefit was

lost. That is the way we put it.

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Your Honours, the short point from all of the

written submission is the case cannot raise any

question of importance any more. CRIMINALE has

decided the case.

MASON CJ: Yes, but in circumstances of the present kind, that

might not necessarily be conclusive. After all,

this case was embedded in the CRIMINALE case and

what might be thought to be the application and the

logical consequence of the decision in CRIMINALE

would be to catch up all those who were involved in

the initial proceedings.

MR HAYLEN: Well, it really gets down to the delay of the

applicant.

MASON CJ: Well, that may be it.

MR HAYLEN:  That is really the issue we put here, because we say

there really cannot be any issue about the state of

the law. It is well settled and - - -

BRENNAN J: In the CRIMINALE proceedings, counsel was prepared

to assume to act for Dr Walker and to treat the

proceedings there as sufficient to deal with Dr Walker's

case and it was the -

MR HAYLEN:  I think that was so, Your Honour. I think in the

course of the running there was a desire not to be
caught with any of the, if you like, the procedural

difficulties but to have the central issue- - -

BRENNAN J:  To have Dr Walker's matter picked up as well, and

it was the court, I think, which said, well, wait

and see what Dr Walker personally might say.

MR HAYLEN:  Yes. Then, of course, you have the court, at the

end of October last year, giving its intimation that

steps should be taken and then there is this

unexplained three months before any action is taken

by the applicant. It is totally unexplained. It

would appear that if it was not for, I think, probably

the health of Dr Walker that prompted her to retire,

the applicant would have remained totally inactive on

the question of special leave. There is no indication

after that amount of litigation and the court's

intimation, just three months in which nothing is done.

BRENNAN J:  Do we not need some material which can demonstrate

to our satisfaction that Dr Walker has been disadvantaged

in some way?

MR HAYLEN:  Your Honour, we really have to rely on that as a

submission: there is no evidence. It really is a matter, we put it as one could commonly understand

how that might be so. A person does not simply have

the financial resources, on the chance that there

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might be a decision against the interest that she

associated herself in the High Court, and

secondly, that in any event because of the way they

conducted their case in the Court of Appeal and at

first instance, that she might be challenged in

relation to her particular entitlement. But in other

cases, I think in MUNRO' s case, that was dealing with

prohibition, I think Your Honour Justice Deane said if you
waited, I think it ·was nine or ten days, to raise the question of

denial of natural justice in the Corrm:mwealth industrial tribunal,

that delay might tell against the applicant.

Here, this is a different set of circumstances

but there is simply unexplained three months delay

after all that went before and no activity on behalf

of the applicant when it lost Dr Walker's case at

first instance and in the Court of Appeal.

MASON CJ: Admittedly there is three months delay, but after all

one has to look at that three months delay in the light

of the clear signal given in the judgment of this

Court which rather indicated that subsequent proceedings were, to some extent, no more than a formality. Now one might have thought that if your client was concerned about the delay, having regard

to the judgment of the Court, you might have sought

some finality from the applicant's solicitors.

MR HAYLEN:  Your Honour, I suppose that is a bit difficult because

until the Court had made its decision in October there

appeared on the face of it to be some finality about

Dr Walker's position. One can only -

MASON CJ: That appearance of finality disappeared, I should have

thought, during the course of the argument in the
CRIMINALE case and certainly in the light of the

Court's judgment as delivered in that case.

MR HAYLEN:  Well, to one extent, Your Honour. The first extent

was that the cross appeal, of course, was on clearly	understood grounds just not possible. It was really	a matter then for the applicant, if it wished to deal
with Dr Walker's case rather than just have a general expression of the law as to the entitlements of employees at the Hospital, to take some steps properly.

DEANE J:	I am right, am I not, that Dr Walker was not in any
way represented in the CRIMINALE case?
MR HAYLEN:	Dr Walker was represented - I am sorry, Your Honour,

when you say the CRIMINALE case.

DEANE J:	When it was in this Court.
MR HAYLEN:	No, Your Honour.
DEANE J:	She was not represented and played no part at all in it?

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MR HAYLEN:  Your Honour, on the application for special leave

in May of 1989 all of the appellants in the Court
of Appeal appeared but in relation to Dr Walker, the

application was made that her name be withdrawn.

MASON CJ:	She was initially an applicant for special leave?
MR HAYLEN:	Yes.
BRENNAN J:	Mr Haylen, why is there not an affidavit dealing

with the propositions in paragraph 4(v) of the

submissions?

MR HAYLEN:	Your Honour, I am not really able to say why.
BRENNAN J:	Why are you not able to say why?  If you are acting
for the woman and this is the basis on which - and she has been disadvantaged, surely you are able to
say why there is no affidavit.
MR HAYLEN:	Your Honour, can I only say this, that I know from

having a conference with Dr Walker that she is

seriously ill and has left the country and that there

was little time to talk to her about what should

happen in these proceedings. It is a matter that we

have raised on an informal basis. I can say no more

than that.

MASON CJ:  It seems to me that your answer to Justice Brennan

does not indicate that if there were material it could

not be put on affidavit and I cannot help thinking

that the Court has now been placed in the position

that if there is no affidavit to support the statement

made in paragraph 4(v) on page 3, it should disregard

the submission that Dr Walker has been disadvantaged

in the suggested way.

MR HAYLEN:  Your Honour, there is no evidence but I can only

put it as a matter of conunon understanding. Would

the Court really need an affidavit to know that the

financial circumstances of people, as such, when

they are making contributions to superannuation, that

towards the end of their working life they would find

it difficult to double those conunitments, or perhaps

more, to give an equivalent benefit.	Your Honour,
that is as far as I can take it.

MASON CJ: That all depends on the financial position of the

individual.

MR HAYLEN:	Your Honour, I cannot assist further than that.
MASON CJ: Yes.	Mr Kildea.
MR KILDEA:	Your Honour, the second respondent supports the

application for special leave.

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Walker

MASON CJ: Yes. Yes, Mr Bennett.

MR BENNETT:  If Your Honour pleases. Your Honour, first in

relation to the question of appearance in the

High Court, the judgment records that there was

an appearance for Dr Walker and I have in my hands

a notice of appearance filed on her behalf on

14 August 1989, which is on the Court file which

indicates that she was described as the first

cross respondent and she appeared in that capacity.

What the Court held, of course, was that that was

the wrong way to do it, that it was not a matter of
cross appeal, it should have been a matter of separate

application for special leave.

DEANE J:  And somebody did appear for her?

MR BENNETT:  Yes, Your Honour. Counsel who appeared for the then

appellants appeared for her as a cross respondent.

BRENNAN J:  Is that right or was it when the question of the

special leave arose counsel who was then appearing

for the other parties of the same interest said that

he had instructions to appear?

MR BENNETT:  Yes, the phrase used in the judgment is that - it

is page 50 of the application book, the second

column, line 10:

counsel for the appellants announced his

appearance for Dr Walker, admitted service

of the notice of cross-appeal upon her, and

made no objection to the grant of special

leave to appeal and to the determination

of the matter ..... on the issues above

referred to.

Your Honour, I do not have a superior recollection

to that.

DEANE J: That indicates that what I suggested is wrong,

Mr Bennett. I accept it as wrong.

MR BENNETT: If Your Honour pleases. That is the first matter.

The second matter is that the allegation in the

submissions which is made today to which Your Honours

have referred is made for the first time today.	Not
only that, but this is the first time we have
received from anyone on behalf of Dr Walker any
criticism of our delay.	Now, it is true that there
should not have been a delay of three months.	I

accept that. But the matter was a mere formality;

it was referred to in the judgment; it was clear it

was going to be done; and it was also clear to us
that there was not going to be any opposition because,
as was said in the judgment, at the time of the

hearing the indication given then would have led us to

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believe that there would not be the slightest

opposition to this application and it was simply

a matter of when it was convenient, putting it

before the Court, proceeding, going through the
formality. There was never any suggestion to us
that there ought not to be a delay, that we ought

to act more quickly; there was never any complaint

about it and the first complaint we have heard about

it was 10 minutes ago. In my respectful submission, in

that situation no weight should be given to it.

The question of the drawing of an inference that there has been some prejudice is very very difficult.

It is suggested that in some way a delay of three months has caused some prejudice because the Court should infer that otherwise something could have been

done in that three months.	The first and obvious
answer to that is that there is no evidence.	The

second answer is that even if such an inference could

be drawn the Court, in my respectful submission,

would say that bearing in mind what was in the

judgment and bearing in mind the absence of any

complaint about the delay, it was obvious the

application was going to be brought and it was

obvious what was going to happen.

In my respectful submission, there is simply no

suggestion for saying this Court should infer any

possible prejudice to the respondent.

BRENNAN J: Did the present:respondenttake her retirement under

a regime which was that declared on her behalf by

the Court of Appeal and if we were to grant special

leave now and allow the appeal, would that mean that

she would be deprived of rights which became vested

in her on her retirement?

MR BENNETT:  I would submit not, Your Honour. The Court of

Appeal made an order; nothing had been done or was

ever done under that order. There was an appeal

when judgment was delivered - indeed, if not from	to this Court from the order and from the moment
the moment of argument, it was apparent what was
going to happen in relation to that appeal. There
cannot have been any suggestion that Dr Walker was
in any way misled or that anyone else was misled and, in fact, no one has acted on the Court of Appeal
judgment.

BRENNAN J:  No one has?

MR BENNETT:  No, Your Honour. For those reasons, it is my

respectful submission that special leave should be

granted and the appeal allowed instanter. I should

say that, as in the other case this morning, there
probably should be an order under Order 60 rule 3

extending time, bearing in mind the fact that under

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the new rules, the old procedure which was done in
this case and the previous case may no longer be

the appropriate procedure.

:MASON CJ: Yes. Now, can I ask Mr Haylen whether, in the event

that special leave is granted, there is opposition

to the allowance of the appeal.

MR HAYLEN:  Your Honour, I do not think we can say anything on

the question of CRIMINALE's case.	I think it
answers the -

:MASON CJ: Yes, I follow that. Mr Kildea, do you have anything

to say on it?

MR KILDEA:	No, Your Honour.
MASON CJ:	Mr Bennett, what about costs? Are you willing to submit to an order for costs of the application for special leave and costs of the appeal?
MR BENNETT:	Yes, Your Honour.
:MASON CJ:	The Court will make these orders:

Special leave to appeal granted; extension of

time under Order 60 rule 6 granted; appeal allowed;

order that such part of the judgment and orders and

declarations of the New South Wales Court of Appeal
as dismissed the appeal in respect of Gwen Jean

Walker be set aside and in lieu thereof order that the appeal to the Court of Appeal in respect of

Gwen Jean Walker be allowed and the proceedings

commenced by her in the Supreme Court of New South

Wales be dismissed.

Order that the applicant pay the respondent's

costs of the application for special leave and of
the appeal.

MR BENNETT: If Your Honour pleases.

AT 12.01 PM THE MATTER WAS ADJOURNED SINE DIE

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