Susan Joy Taylor in her own Capacity and for and on behalf of the Dependants of the Late Craig Taylor v The Owners Strata Plan No 11564 and Ors

No judgment structure available for this case.

[2014] HCATrans 011

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S179 of 2013

B e t w e e n -
SUSAN JOY TAYLOR IN HER OWN CAPACITY AND FOR AND ON BEHALF OF THE DEPENDANTS OF THE LATE CRAIG TAYLOR
Appellant
and
THE OWNERS – STRATA PLAN NO 11564
First Respondent
ALISON MARGARET LAMOND
Second Respondent
GORDON SUNN
Third Respondent
CLIFFORD SUNN
Fourth Respondent
DUNCAN RAE
Fifth Respondent
MANLY COUNCIL ABN 43662868065
Sixth Respondent
RYAN WINTON TAYLOR
Seventh Respondent
LISA JANE TAYLOR
Eighth Respondent
MITCHELL ALAN TAYLOR
Ninth Respondent
ZARA ZOE
Tenth Respondent

FRENCH CJ
CRENNAN J
BELL J
GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 7 FEBRUARY 2014, AT 10.01 AM

Copyright in the High Court of Australia

____________________

MR J. POULOS, QC: If your Honours please, I appear with my learned friend, MS V.M. HEATH, for the appellant. (instructed by Craddock Murray Neumann)

MR P.W. TAYLOR, SC: If your Honours please, I appear with my learned junior, MR A.C. SCOTTING, for the first to fourth respondents. (instructed by Meridian Lawyers)

MR S.R. DONALDSON, SC: If your Honours please, I appear with my learned friend, MR S.P.W. GLASCOTT, for the sixth respondent. (instructed by DLA Piper Australia)

FRENCH CJ: There are submitting appearances for the fifth and eighth to 10th respondents. Yes, Mr Poulos.

MR POULOS: Your Honours would have received, I trust, our appellant’s propositions document.

FRENCH CJ: Yes.

MR POULOS: It does not follow precisely the form of our submissions in this sense, that in the overview, we refer to the general propositions that arise from statutory interpretation as applied to this section, and in (1), we say:

A general purpose of the Civil Liability Act 2002 (NSW) (Liability Act) is to restrain damages awards –

we should place emphasis on the words “general purpose” –

However, only the text in context identifies the extent to which this purpose is pursued through a particular section or topic –

and we propose to draw the Court’s attention to its decisions in Carr and Mammoet –

The ordinary meaning of s 12(2) applied to s 12(1)(c) Liability Act restrains claims by relatives for their own lost income. This meaning
i.is clear, understandable and unambiguous;

ii.fulfils, not defeats, the statutory purpose (it intelligibly applies to the subject matter);

iii.is not absurd or irrational;

iv.is consistent with its statutory context in that Act;

and accordingly, must be given effect –

Your Honours, I had the opportunity of looking very quickly at the overview provided by my learned friends and, of course, to their submissions, and straight away we need to address what 12(1)(c) of the Civil Liability Act would apply ‑ how it does apply.

But before I do that, the legislative history of various Acts of the New South Wales Parliament over the years has been a very stormy one. It resulted from proposals from various, shall we call them interests, to amend the common law and various statutes that applied to personal injuries damages. It has resulted in the production of several Acts which deal with several areas of dispute, if I may put it that way. Obviously, the broad areas are workers compensation, motor vehicle accidents and the general category of damages that are sought to be managed by the Civil Liability Act which is, of course, as your Honours would read from the judgment of the court below, a product of its own history but also the history of the Health Care Liability Act.

The Health Care Liability Act was dealing with the narrow problems that arose from the perceived runaway losses that were being sustained by the medical insurers at the time and the politics of that time are replete with the urgency that was said to be necessary in order to save the medical profession.

The Health Care Liability Act is different in many respects from the other two Acts which govern the other areas, namely, Workers Compensation Act 1987 and the Motor Accidents Compensation Act. It is different for reasons which might be more properly held in some form of inquiry as to the politics behind it but ‑ ‑ ‑

FRENCH CJ: Sorry, is not our starting point the text of the Civil Liability Act?

MR POULOS: Yes.

FRENCH CJ: There is a common position, as I understand it, that Part 2 of that Act applies to claims under the Compensation to Relatives Act, is that right?

MR POULOS: Yes.

FRENCH CJ: Can I just understand the basis of that ‑ that arises out of section 11A, does it not, of the Civil Liability Act?

MR POULOS: Yes.

FRENCH CJ: That is on the basis that an award under the Compensation to Relatives Act is an award of personal injury damages.

MR POULOS: Yes.

FRENCH CJ: It is section 11A(2) or otherwise, or your statute, under statute or otherwise?

MR POULOS: Yes.

FRENCH CJ: I just raise this because the mere fact that the parties are agreed that Part 2 applies does not, of course, bind the Court. That is a proposition of law. I am not suggesting it is wrong but I need to know why it is right.

MR POULOS: Correct. Well, your Honours would be aware that we mounted an argument before the primary judge.

FRENCH CJ: I appreciate that.

MR POULOS: But that argument was not pressed in the Court of Appeal. The difficulties, having been put behind us, still leaves us with the question of what is the loss of expectation of financial support. Your Honours, that is the product of many, many years of judicial consideration of the nature of Compensation to Relatives Act claims, both in this country and in the United Kingdom.

FRENCH CJ: You take that as a marker of the application – you accept that that is a marker of the application of Part 2 to Compensation to Relatives Act claims.

MR POULOS: Yes, we know that if you look at the plain words, without having regard to that which has occurred over a hundred years or so, there may well be a pregnant pause while one looks at that. Your Honours, we have found that by looking at the past authorities that the words “pecuniary”, “loss of pecuniary benefits” has often transposed to the words “financial benefit” or “financial support”. They are used interchangeably by this Court and by intermediate courts.

Very recently, after looking at a footnote of Mr Luntz’s textbook, the case of Croker which has been sent to your Honours very late which, fortunately for us, and I say that advisedly, involves at least three of the giants of common law in New South Wales, namely, the late David Yeldham and Gordon Samuels and Justice Hutley, or Mr Justice Hutley as he then would been called, and Justice Hope. In respect of that case, we have a very clear and helpful analysis of the kind of claims that were really obiter in the case of Dwight v Bouchier which we relied upon in the court below.

This case, shortly put, was that a sailor in the navy, estranged from his wife, was forced by reason of her death to give up his career in the navy and he thereby suffered economic loss. The court found it was reasonable for him to go back and look after his children. He got a new job with the Department of Meteorology.

FRENCH CJ: I do not know where we are going with this Mr Poulos. I had simply asked you about the basis for the proposition, and I am not suggesting it is a wrong proposition that Part 2 applies to the claims under the Compensation to Relatives Act, and I take it that arises out of section 11A(1) and (2), the definition of “personal injury damages” and perhaps also the specific reference to loss of expectation of financial support which is something that is connected with, or associated with, fatal accidents claims.

MR POULOS: Yes, Your Honour.

FRENCH CJ: I think we can perhaps ‑ ‑ ‑

CRENNAN J: Mr Poulos, just at the level of principle, all members of the Court of Appeal appeared to agree on the proposition that if the literal meaning to be found in a statutory provision appears not to accord with the purpose of the statute there is a particular approach to be followed to extending the meaning of those words and all members of the Court of Appeal referred to Lord Diplock in Jones v Wrothan Park Settled Estates [1980] AC 74 in a passage at pages 105 to 106 and what divided the Court of Appeal, as I understand it, is that Justice Basten, in dissent, took the view that the third condition of Lord Diplock was not satisfied. This can be found at the appeal book page 77 at paragraph 95. His Honour took the view:

the Court could not be confident as to the course the legislature would take if the consequences of a literal interpretation of s 12(2) were drawn to its attention.

That was the basis of his Honour’s dissent. My question for you is, do you accept that the relevant principles are to be found in Jones’ Case and are you seeking to support Justice Basten’s approach or are you seeking to adopt some other arguments in relation to the point before us?

MR POULOS: We would ‑ to answer the question this way ‑ point out that the House of Lords in Inco which, of course, is a later decision and it has been dealt with or mentioned and referred to in this Court, has four conditions. If that approach is to be adopted, if I may call it, for shorthand purposes, a reading in or reading words in to make sense of a section, then that approach, the four step approach, is the one we would say should be adopted, but that leaves the first three.

Naturally, our point really is that you do not get to the Diplock tests until you exhaust the general principles of statutory interpretation, and it is often forgotten when – this is the way I perceive it – when looking at the discussion of Wentworth that Lord Diplock himself when he started off saying that you may adopt these steps, he says that that is only in circumstances where the ordinary principles of statutory interpretation lead you into a dead end, as it were, having regard to the context and purpose of the Act. That is our primary point in this case. But, if we have to go to the Wentworth and Inco tests, Lord Nicholls in Inco says that what really happens if you put together the questions and answer them and have regard to his fourth test. It is really a ‑ ‑ ‑

CRENNAN J: Sorry to interrupt you, but is your first point the point that the literal meaning is sufficient or your purposes and should not be ignored?

MR POULOS: That is right. We would rather use the ordinary grammatical meaning of the words, intelligently applied using the Chief Justice Gibbs approach in Cooper Brookes.

BELL J: Taking the ordinary grammatical meaning of the words in 12(2), you submit that the claimant applies to any person for whose benefit an action is brought under compensation to relatives, is that so?

MR POULOS: That is correct, yes. There have been attempts to adopt a very strict view of the word “claimant” by approaching it through the Compensation to Relatives Act where it says an action shall be brought by the executor or the representative, but the Act goes on to say that the claimants, the relatives, can bring actions in their own name, and a fair reading of the whole of the Compensation to Relatives Act really results in the claimants being those persons for whom the action is brought. In the courts below it was ‑ ‑ ‑

FRENCH CJ: The other thing you do is you say loss of expectation of financial support has work to do by reference to the plaintiff’s loss of earnings?

MR POULOS: Yes.

KEANE J: Do you rely in your claim on the deceased’s earnings to support your claim?

MR POULOS: The losses sustained by – yes, of course.

KEANE J: Because it is the deceased’s earnings that establish the loss of expectation of financial support.

MR POULOS: Part thereof, yes.

KEANE J: So an integral aspect of your claim as claimant is the earnings of the deceased?

MR POULOS: Yes.

KEANE J: So in that sense at least, the gross weekly earnings of the deceased are part of your claim?

MR POULOS: Yes.

KEANE J: So in that sense are they the claimant’s weekly earnings, in the sense that they are the weekly earnings on which the claimant relies in its claim – in her claim?

MR POULOS: No, your Honour, we would not ‑ that involves a leap. They cannot be the claimant’s weekly earnings. “Claimant” has got its meaning, which is the person who makes the claim for the lost benefits.

KEANE J: Well, you say it means the weekly earnings derived by the claimant, do you?

MR POULOS: Not the weekly earnings derived by the claimant – a benefit derived from having regard to the historical earnings of the deceased. This is a new Act in the sense that – sorry, the action does not derive from the deceased in any way except by the reason of his unfortunate death. That is the event that triggers the consideration of section 12.

KEANE J: Well, earlier you were referring to the cases that have talked about this, and one cannot help but notice that the language of 12(1)(c), that is, that the:

award of damages . . . for the loss of expectation of financial support –

is actually taken verbatim from the judgment of Chief Justice Barwick in Ruby v Marsh ‑ ‑ ‑

MR POULOS: Yes.

KEANE J: ‑ ‑ ‑so it is essentially a statement of the nature of the claim under 6B of the Compensation to Relatives Act.

MR POULOS: Yes.

BELL J: Upon your acceptance that section 12 has application to a Compensation to Relatives Act claim, your assertion is that in the case of a claim such as the plaintiff’s in this instance, section 12 is not engaged because no part of the claim involves the claimant’s gross weekly earnings. It is simply not a relevant consideration. You rely on Croker for the point that in some claims brought under the Compensation to Relatives Act, it would be relevant to the court to have regard to the claimant’s gross weekly earnings and in such a case the mandate of subsection (2) would apply.

MR POULOS: Yes.

BELL J: That is your point, really?

MR POULOS: Yes, it is.

GAGELER J: Is it really that the difference between you and your opponents is that you read “claimant’s gross weekly earnings” as meaning what the claimant would have earned, and your opponents read “claimant’s gross weekly earnings” as referring to the gross weekly earnings upon which the claimant relies to make the claim?

MR POULOS: Yes, that is so.

GAGELER J: Can I ask you about section 12(1)(c), the reference to “loss of expectation of financial support”? Do you submit that that describes any and all awards of damages under section 4 of the Compensation to Relatives Act?

MR POULOS: Yes, we do. The errors of the court below, both the primary judge and the majority in the Court of Appeal, was to look at the other Acts which, we say, does not form the – is not the appropriate context. The appropriate context is the terms of the Civil Liability Act itself and the authorities are quite clear that that is the case. There are steps that can be taken which involve the review of extrinsic materials, customarily thought to be the second reading speeches and other cases, or if there is an objects clause in the Act and the like that there may well be need for a court to have recourse to them. But the general process is to look at the context provided by the Act itself, and we have set in Part 3 on page 2 of our written submission how the rest of the sections in Part 2 might be of assistance in gauging what the context is.

We were very confident that section 15, for example, which to use a simpler form of submission, relates to domestic care, Griffiths v Kerkemeyer type damages does not apply to the Compensation to Relatives Act situation. Unfortunately, for the neatness of that point, her Honour Justice Adamson as recently as 19 December delivered a judgment in the matter of Goddard in which she disagreed with his Honour Justice Basten in another matter and said that section 15 by its plain terms obviously applied to a situation where there was a deceased mother, denied by reason of her construction of section 15 the rights of the infant children to damages for loss of parental support.

I may say that the New South Wales Bar rules really would not require us to bring this to your attention because it is not a decision of an appellate court. However, we bring this to your attention because it is some deliberation on section 15. We say that it is plainly wrong and that it is a misreading of the whole of that part. Having said that, we have set out the other sections and the only one which deals with Compensation to Relatives Act by name is that section which was put in place to prevent double dipping after the New South Wales Parliament brought in the section which allows benefits to be paid where an injured person has not been able to provide care to, say, his children.

That follows this Court’s decision in CSR v Eddy which, in passing ‑ this whole process demonstrates the general purpose of the Civil Liability Act is not to take away all benefits and rights that might have been possessed and, in fact, it has created new ones. When one looks at the purpose of the context in the Act that it demonstrates that some things have been left, some things have been created. One of the rights of action that has been left is the action per quod servitium amisit claims. That, of course, is the claim by an employer that he has lost the services of a servant, an old and venerable right that was not addressed, even though it had been addressed in the Motor Accidents Compensation Act.

Now, your Honours, I did refer to a statement of objects, the Health Care Liability Act, from which this wording derives, did have a statement of objects, and insofar as it is permissible for me to refer to it I wish to do so because her Honour Justice McColl said that there had been a drafting error, not only in this Act, but also in the Health Care Liability Act. We wish to make a closer analysis of that particular proposition because under the Health Care Liability Act the objects were clearly set out. If you would just pardon me, your Honour. They do not include anything about compensation to relatives claims in that – and I am talking about the objects here ‑ ‑ ‑

CRENNAN J: “Claimant” is defined in that Act, is it not, in any event ‑ the Healthcare Liability Act.

MR POULOS: Sorry, your Honour?

CRENNAN J: “Claimant” is defined for the purposes of the Health Care Liability Act, is it not?

MR POULOS: My hearing is not as good as it should be. What is defined, your Honour? I am sorry.

CRENNAN J: “Claimant” is defined in the definition, clause 4, meaning:

a person who makes, or is entitled to make, a health care claim.

MR POULOS: Yes. That was translated into section 9 of that Act and it is necessary to look at section 8 as well of that Act. But while the actual text is being handed to me, your Honour, Justice McColl’s – the objects of that Act was ‑ between (a) to (e) and (b) was:

to keep the costs of medical indemnity premiums sustainable, in particular by limiting the amount of compensation payable for non‑economic loss in cases of relatively minor injury, while preserving principles of full compensation for those with severe injuries involving ongoing impairment and disabilities.

Now, that was translated into section 9, which relates to damages for economic loss in Division 2 of that Act:

Damages for past or future economic loss—maximum for loss of earnings –

Your Honours will note that in 9(2):

In the case of any such award, the court is to disregard the amount (if any) by which the claimant’s net weekly earnings would (but for the injury or death) have exceeded $2,603 ‑

which was an indexable amount – (3) ‑

The annual adjustment under section 146 of the Motor Accidents Compensation Act 1999 of the amount applying under section 125 of that Act applies to and in respect of –

and I will not read the rest of it ‑ which is an indication that at the time of the drafting of this Act, and later the Civil Liability Act, the draftsman had before him the example of the Motor Accidents Compensation Act which, of course, contains the restricting section containing the words which my learned friends in the courts below say should be read into the Civil Liability Act.

It is not a drafting error. We say that there was not any inadvertence here, there was advertence on the part of the draftsman because he had before him the Act which could have served as a model for section 12. Now, your Honours, in decisions of this Court have referred to the venerable, now venerable I suppose, authority of Sovar v Henry Lane which I remember well because it was said of that case, it was the one that Michael McHugh, as he then was, made his name as a junior counsel in the High Court, defending the rights of workers who had been injured in ‑ ‑ ‑

FRENCH CJ: What is the proposition you are extracting from that?

MR POULOS: The proposition is, as his Honour Justice Kitto said in Sovar v Henry Lane, when looking at the statute, to deal with an argument raised by the appellant in that case, is that the draftsman had before him the provisions of the United Kingdom Act and it was obvious that there was regard to that. Now, your Honours, that situation carries through to the Civil Liability Act which absorbed the Health Care Liability Act into its terms, and insofar ‑ your Honour, I might just take your Honours to the exact passage in Sovar v Henry Lane which is in ‑ ‑ ‑

FRENCH CJ: What page?

MR POULOS: It is on page 408 of ‑ ‑ ‑

BELL J: (1967) 116 CLR 397 at 408.

MR POULOS: Thank you, your Honour. Yes. I knew that but I just could not find it:

It seems to me extremely difficult, to say the least, to hold in the face of this course of legislation that sub‑s. (5) implies the very qualification of sub‑s. (1)(d) which the legislature so studiously refrained from making, and which the introductory words of sub‑s. (5) itself impliedly deny ‑

above that, I am sorry, it says ‑

the special cases . . . could not have been other than deliberate; for not only did the draftsman have the English legislation before him but he had also before him pars. (a), (b) and (c) of s. 27 itself, each of which contained its own built‑in qualification.

With that in mind, the Civil Liability Act was promulgated. The Minister referred to the Civil Liability Act and the second reading speech and it was carried through, without any reference in the second reading speech, I might say, to compensation to relatives cases, it simply talked about claims by high earners. If I may say so, the theme was to control claims by high earners. In historical terms it had been a case relating to the death of a doctor which had resulted in a very high verdict and that preceded all of the debates on these Acts and obviously that had generated the need to control such claims.

So the words from the Health Care Liability Act were transposed across into section 12 with the difference being that the dollar cap was not put into it but the formula of three times average weekly earnings was which, in itself, demonstrates that care was being had by the draftsman to the specifics that he needed to put into that Act. So there was no error. In our submission, there was no drafting error that can be pointed to.

A plain reading of the words means that a live person, who is a high income earner, who sustained a loss of the type that is mentioned in section 4 of the Compensation to Relatives Act, a loss which crystallises on the death of the deceased who says that he is forced to lose his income. He does not lose his work capacity. What he loses is the opportunity to exercise his capacity and every common lawyer falls back on examples of that and Croker’s Case was the perfect example. But if we wish to make it a more realistic proposition, if a person died on an operating table who was a very high earner that would be a tragedy for his family and the terms of the Health Care Liability Act, we say, does not prevent a claim being made for such a family surviving such an event.

However, if a highly paid person – let us take an income that is not beyond the bounds of realistic consideration – a million dollars – he is a partner in a firm or is the sole practitioner in some field, his family consisted of his wife who has stayed at home to look after a very difficult child and, in fact, I think in the facts of Croker that there was a blood disease and disorder in that case.

But just assume that, in those circumstances, even temporarily, that person could not follow his occupation, and I say even temporarily, for six months. He then says, “Look, I lost income during that six months to the extent of 500,000”. He then makes a claim, as he would. It would be no question of that being an unreasonable thing to do, if it took six months to adjust to the loss of the wife, but he would not be able to claim that amount of money. If we follow the authorities through from New South Wales and Victoria, he would only be able to claim under this section for his total loss if he was not earning anything in that six months. If he was earning something in that six months, then the section is adjusted. He may still not get any money, but that is for the application of a formula.

FRENCH CJ: Anyway, what that all seems to reduce to is the proposition that as a matter of construction, section 12(1) picks up awards of damages under the Compensation to Relatives Act, not least because of the reference to “loss of expectation of financial support” in 12(1)(c), and that 12(2) has work to do in respect of loss of earnings by plaintiffs or persons on whose behalf a claim is made by an executor or administrator of the estate of the deceased, being persons who assert that their damages include loss of earnings flowing from the death of the deceased for a variety of reasons which you have hypothesised in your submissions, including the synergistic thing and the support thing, and so forth.

MR POULOS: Yes.

FRENCH CJ: Provision of services and so forth.

MR POULOS: I think in one of the more recent High Court authorities it was pointed out by Chief Justice Gleeson that facts and circumstances in the modern day are becoming more and more complex. There is no longer a paradigm case of the tradesman being killed on the street, leaving a family behind of a homemaker. Unfortunately, I believe that in the lower courts that paradigm case bulked very large in the minds of the primary judge and to perhaps a lesser extent in the minds of the majority in the Court of Appeal. To adopt the words of Chief Justice Gibbs in Cooper Brookes, this question of statutory interpretation does involve a certain intellectual exercise of trying to make the words of the section work.

It might not be immediately apparent to the minds of a casual reader of this section about the myriad circumstances which might need to be applied under the Compensation to Relatives Act to estimate the loss proportionate to the death of the deceased. Strangely enough, the old cases provide some better examples, like Pym where obviously a very rich landholder who probably was not a worker, did not have any earnings in the true sense of the word, passed away and by reason of the settlement of his estate the survivors, bar one, received very little because it all passed to the eldest son.

That was talked of in Pym as the kind of loss that could be compensated under the 1846 Act. Your Honours, I think the Chief Justice has encapsulated that point as well as I can, but I do wish to say that the High Court authorities to date are all for a broad and expansive approach to the losses that flow from the death of a person, and it requires close appreciation or consideration of the section to see whether or not the claimant has a loss which is outside the paradigm, and which was comfortably dealt with by the words in section 12(2).

CRENNAN J: What is your response, Mr Poulos, to a point which, as I understand, is put against you, which is that the words in parentheses:

(but for the injury or death) –

point to application to fatal accidents claims. I am referring to words in 12(2).

MR POULOS: I can answer it this way. The high income earner would not have any claim in a case of death if the person had not died – that is because it is such an obvious point ‑ but for the death is the signal for that section to be applied in that particular instance.

BELL J: Mr Poulos, do you accept that the reference in 12(1)(c) not only is to be understood as including claims under the Compensation to Relatives Act, but has no meaningful application other than to claims under that Act?

MR POULOS: We have thought long and hard about that, but the answer is no. We cannot find anything that might otherwise satisfy that.

BELL J: That is, you accept that it is a plain reference to a Compensation to Relatives Act claim?

MR POULOS: Yes. That is a clear marker and indicator that that is the subject matter which has to be dealt with by section 12(2). There is no mistake about that. Section 12(2) is directing the court what to do when that marker is raised.

BELL J: When there is a high income earning claimant, understanding “claimant” in that sense to be a person on whose behalf a compensation to relatives proceeding is brought.

MR POULOS: Yes.

FRENCH CJ: So the argument reduces to the question of whether in its application to claims brought under the Compensation to Relatives Act, section 12(2) has work to do by reference to the gross weekly earnings of those on whose behalf the claim is brought?

MR POULOS: Yes.

FRENCH CJ: As distinct from the deceased.

MR POULOS: Yes. Your Honour, of course, the coda to that is: once that purpose is discerned the court is not able to cast about to see whether or not other meanings can be attached to it – not attached to it, but read into it, because the ‑ ‑ ‑

FRENCH CJ: Well, this is step 3 in Lord Diplock’s conditions.

MR POULOS: Yes. Well, your Honour, my learned junior points out that I might need to correct an earlier answer that I gave to Justice Crennan about the difference between the parties. My learned junior is worried about the effect of one of the answers that I gave talking about the possibility that it is a loss of earnings that might have been received from the deceased. I am ‑ ‑ ‑

FRENCH CJ: Your submissions relate to effects of the – sorry, your submissions involve the proposition that subsection (2) has work to do in respect of flow‑on losses by a claimant to the claimant’s gross weekly earnings as a result of the death of the deceased, and you put a variety of hypotheses which I think are summarised in the respondent’s submissions.

MR POULOS: Yes.

FRENCH CJ: That is it, is it not?

MR POULOS: That is it, yes, your Honour. There may be situations where a person loses his work because, for example, his father passed away, the business folded, and to be ‑ ‑ ‑

FRENCH CJ: Well, that is a sequel.

MR POULOS: Yes, to be perfectly blunt about it, he might not get a job anywhere else because his father ran a sort of sheltered workshop for him and paid him lots of money but, you know, those myriad of constructible examples are not necessary to look at.

KEANE J: But, Mr Poulos, that is a loss resulting from the loss of support. How is it that that example you just gave is an example of the loss of an expectation of financial support? It is actually a loss because the support is not there.

MR POULOS: Yes. Well, expectation of financial support means that he expected to receive it into the future but can no longer do so because of the passing of the deceased. It is an expectation of a benefit he will obtain in the future. The loss crystallises at the date of death but Ruby v Marsh and those cases say that you assess the future just as possibilities and chances. There have been cases, of course, where there has been no dependency in the financial sense up to the date of death but sometime in the future that person might have expected it to flow to him and that because the deceased has died he no longer can rely upon that expectation.

In the court below, if I may say so, the arguments developed about – that these kinds of cases would be – the ones, the loss of financial support by survivors where section 12(2) might apply are very rare. Compensation to Relatives Act outside the Motor Accidents Act and outside the Workers Compensation Act are very rare themselves. One only has to think of the purview of this Act and claims by high earners are even rarer. As was said in the court below, I think Justice Hoeben in argument said it was only .001 of cases. We dispute that because that is not a statistical analysis, but Justice Hayne ‑ ‑ ‑

FRENCH CJ: Maybe that is just a rhetorical figure.

MR POULOS: A rhetorical figure. Justice Hayne in Plaintiff M47 pointed out that is not a relevant consideration. If the section has only got some work to do then that is sufficient.

GAGELER J: You have given us a case decided in 1980, the case of Croker v Wright as an example. Are there any other examples we can point to?

MR POULOS: There are. Justice Yeldham and the Court of Appeal referred to the English cases, one of which is Mehmet v Perry, which is referred to and adequately set out. We have read the original case in both the Justice Yeldham judgment and the Court of Appeal. Your Honours, Justice Yeldham’s judgment is more than commonly instructive. It is a detailed and thorough analysis of how in that case a court would award damages. It is a case which brings back the old common law method of proportioning damages or what should be done under the Compensation Act to proportion damages to the loss in such a case. It is one which the Court of Appeal unanimously supported.

Another case which was referred to in Croker was a case called Oldfield v Mahoney which, unfortunately, we have not been able to get a report of, it is unreported. It demonstrates another facet of these losses because of the death of his wife. A man could not get a job at a school because the terms and conditions of an appointment was that he had to be a married man. He was awarded damages. Obviously, he is not going to earn more than three times weekly earnings but it demonstrates how the proportionate loss might take very unusual forms.

In Nguyen, a decision of this High Court and Nguyen (No 2) which is a decision of the Queensland Court – in Nguyen (No 2) the leading judgment was that of Justice Brennan, of course, who became the Chief Justice of this Court. I withdraw that. Nguyen (No 2) is Justice Derrington, [1992] 1 Qd R at 405. That case has been remitted back to them for decision by the High Court and support is given by – at page 412 Justice Derrington said when talking about the claims made:

In that case a further sum must be added for the deficiency. Equally, where, as again in this case, it is necessary for the surviving parent to stay away from work in order to care for infant children on a full‑time basis and to provide them and himself with substituted services, then again the correct approach is to assess the loss upon the same basis for such period as that state of affairs is necessary. In each such case, the amount of the loss may be reduced by some factor such as receipt of a supporting parent’s pension, which is received specifically for the purpose of replacing the lost services –

In that case there was no claim made for loss of income because of the peculiar nature of the claim that was made below, but Justice Derrington clearly encompasses that such a claim could be made. Your Honours, I suppose any advocate in our situation would love dearly not to have to deal with the, if I might call it the minefield of Wentworth Securities v Jones, but there is no doubt that this stream of authority has been swelling since that time. It has been dealt with in this Court, or mentioned in this Court but never, as we ascertained it, by a majority.

Once again, one can pass the comment that it would be unusual circumstances where it was needed to be addressed at all and we say, of course, in this case it does not need to be. The difference of opinions that have developed between New South Wales and Victoria, for example, are clear for all to see. The Victorian case of Director of Public Prosecutions v Leys, which was handed down in the days shortly after the argument in this case, which was taken into account by her Honour Justice McColl, who really never had the opportunity to deal with the division of opinion that arose there.

Shortly put, the division of opinion is that the Victorian Court of Appeal does not think that there is such principle that can only read down, not read up, and the discussion finally culminated in a very long but, if I may say so, useful judgment, if anyone wanted to learn the history of Wentworth in this country that judgment has a good exposition of its progress. So it culminates with that Court unanimously saying they would not follow the principles espoused by Chief Justice Spigelman in R v Young and R v PLV and other cases, which does raise a problem because it has been followed extensively in New South Wales, it has been followed in Queensland and South Australia, and there have been discussions because obviously judges of the intermediate appellate court have taken a great interest in the subject and many of the judges have developed learned dispositions on it.

But if one is to distil a principle from it, apart from what I might call the prologue, you do not get there until quite stringent requirements are met, and we have made our submissions on that. But in terms of what warnings might be gleaned from the discussions, what boundaries have been set by those discussions, they all seem to have the flavour of notional legislation about them in many instances that they seem to be the workings of a parliamentary subcommittee setting out to solve what they perceive to be a defect. Reading down, in some instances, has been – and if I may say so, Chief Justice Spigelman has put good arguments to show that that is the case.

Adding to Acts so that to broaden the area of operation of an Act seems to be the negative, that if one can avoid it that should be avoided, and I think that is what Lord Justice Nicholls is saying in Inco, that once you have done all of this step back and look, are you acting now in your role as a judicial officer in a court or are you arrogating to yourself the powers that ought best be left to Parliament?

GAGELER J: Whether it is reading up or reading down, is it not simply a matter in an appropriate case of a court taking a non‑grammatical meaning from the words that are used in the statute?

MR POULOS: Yes. That is what has been done, I agree.

GAGELER J: Sometimes that can be done, sometimes it cannot.

MR POULOS: Yes. The problem is for somebody who needs to deal with the common or ordinary meaning of a statute in order to order their affairs to take steps which may be financially disadvantageous to them how do they know, when looking at the common or ordinary words of a statute, that they can read in?

GAGELER J: Well, I just wonder if what Chief Justice Dixon said in Agalianos is not the basic guide in all of this. He said:

the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.

MR POULOS: Yes. Well, Agalianos was a good example of a purposive approach under the Workers Compensation Act of the day, but some of the words that Chief Justice Dixon used I personally find difficult to apply in practice. For example, when he mentions the word “fairness” does he mean fairness to a claimant, does he mean fairness to both parties, in fairness in this case is it fair that a family should be mulcted of their entitlement for the sake of making a statute read consistently or inconsistently as the case may be. We have dealt with the question of the context of that Act and tried to show that in its limited way this Act has met the requirements. But, your Honours, to go to the ‑ ‑ ‑

CRENNAN J: I suppose the problem, to which I think Justice Gageler was adverting, is that you do not go so far as to say that the interpretation of subsection (2) for which the respondent contends is an unnatural or an incongruous or unreasonable construction of that subsection, do you? As I understand you, you seem to be saying that because you can subscribe a rational meaning to the text, there is no warrant for reading in, even if reading in will give you an alternative and perfectly rational and possibly congruous construction.

MR POULOS: That takes us back to the question of what you can say the legislature intended. Did they intend more than the plain words? Of course, if those who wish to use an a priori assumption to say, well, they have done it in these other two Acts. It would be good, or consistent, to do it again in this Act. There is no doubt that that was what was done by the majority below.

CRENNAN J: The majority are virtually finding that the reading up, if that is how you want to describe it, arrives at a construction of the provision which is modified over and above the natural ordinary meaning, but is one which conforms with the statutory scheme in the Civil Liability Act.

MR POULOS: But once a meaning is given to the section which conforms with the statutory scheme, the only implication is, is that where it stops? There could be other sections put into it; of course, Parliament has got all the power it needs to do so, but Parliament has not done it.

CRENNAN J: This reading up goes too far, is that the nub of it?

MR POULOS: Yes, and Chief Justice Spigelman not only in his decisions, R v Young and PLV, but in the writings of, for example, his paper entitled “The Intolerable Wrestle” has pointed out that the cases which are used as an example over and over again, cases of this Court, are in fact cases where the Court has read down the meaning of the words. With that comment, let me pass on to what we characterise as the effect of these decisions. Taking Inco itself, for example, the legislation there involving arbitrations and a question of appeals to county courts had, as a matter of practice over the years, always had as part of the rubric of those statutes the possibility of an appeal to the county court, yet an amending act was brought in which left out the provisions which would have given an appeal to the county court.

They said that was a plain error. It is of the kind of error that was talked of in Cooper Brookes where the statute – the Income Tax Act had defined a company historically and yet failed to do so in one of the sections and the Court said, well, it is obvious that we can read the words in that will make that work. Now, trying to characterise an Income Tax Assessment Act for me is an extremely difficult exercise, as is many of the questions of interpretation in fact that arise in this Court.

Quite frankly, I do not think I have got the experience or the intellectual firepower to follow a case like Momcilovic all the way through to its conclusion at about page 260 or something, but I think that the cases do present this theme, this thread that his Honour the Chief Justice was referring to ‑ Chief Justice Spigelman was referring to. But this failure to provide machinery – and that is I think a good way of describing it – machinery so that the Act can work, the classic example of it is DPP v Leys itself where there was a gap between the passing of one Act and the second Act was going to come into force and that machinery was not provided for the interim, so that these orders which have a word.....attached to them, could not be utilised in the court in criminal matters. Well, that was where the machine to be used did not have a part that needed to be inserted into it for it to work.

FRENCH CJ: Does not your proposition reduce to this, putting to one side notions of reading in and reading up and reading down and so forth, that the ordinary meanings of the word “claimant” are sufficient unto the day to give section 12(2) a function, and that it is not necessary for the purposes of coherence of the statutory scheme or satisfaction of legislative purpose to read the word “claimant” as including a deceased person who on no view could be a claimant according to the ordinary meaning of that word?

MR POULOS: Yes, and it is not necessary to add any words after it, such as the Court of Appeal did, because that is, amongst other things, unnecessary to give the subsection work to do and, if it was done, we say it steps outside the boundary. It enlarges the action of the section in a way that only Parliament can do. One cannot put it any more bluntly than that. The Spigelman phrase of “The Intolerable Wrestle” I think ought to be replaced by the continual – the marathon dance that seems to have occurred with this ‑ ‑ ‑

FRENCH CJ: I think the further we stay away from metaphor, the better.

MR POULOS: The stuff of life on the 11th floor metaphors, but I take your point and I apologise for using them. The difficulty for a person coming to a piece of legislation where plain words are used and having an effect, to then order their affairs by saying well, what if they apply the Diplock test to this, must be manifest and the proper solution for it is for Parliament to insert the words, not for the court to do so.

To give guidance to the courts, lots of phrases have been used. Lord Justice Scarman said that it is too big a thing to do. That is an appropriate way of describing it. The arguments that my learned friends have put and the court below put, it is a bit thing, firstly, to find that it is a drafting error. We say there is no such thing in this particular case and that we are forced back on to this proposition that Justice Basten said in so many words, that it is not the function of the court to do. He could not settle on what words should be used.

The circumstances change in legislation. This is, after all, a 2002 Act and if the equivalent of an Ipp inquiry was held today as to whether or not there was a need to do this might come up with a different result. A parliamentarian might come up with ‑ what, they may say, will it cost to leave the situation as it is. All those matters are best decided by politicians so amending of the Act is a task for them.

One of the matters that arises from the Court of Appeal’s decision, the majority’s judgments with that, it was said of the draftsman that he ‑ and calling in aid this to say that there had been an error, that the draftsman had misconceived the law. Well, I hope that we have made it plain that the law had provided a basis for relatives’ claims and that it was not a misconception and that to use that as a statement that there was a mistake on the part of the draftsman is inaccurate. They are our submissions, your Honour.

FRENCH CJ: Yes, thank you, Mr Poulos. Yes, Mr Taylor.

MR TAYLOR: Unless your Honours would prefer to divert me to another course, I propose to do five things: first, to answer the Chief Justice’s question about the reason for the application of Part 2; second, express a qualification addressing the Chief Justice’s synthesis of the point of division between the two parties; third, to respond to Justice Keane’s inquiry about the origin of the expression of financial support in Ruby v Marsh; fifth, to address Justice Crennan’s inquiry about the application of Wentworth and, finally, to shortly outline the reason why we have our difference of emphasis with the Chief Justice’s synthesis.

The first of those points in relation to the application of Part 2, the Chief Justice mainly referred to section 11A. The determinative point in Justice McColl’s reasoning was really the definition of personal injury damages which appears at the end of section 11. At paragraph 21 of Justice McColl’s judgment which appears at page 53 of the appeal book, your Honours will see that her Honour said that:

the inclusion of express reference to “death of . . . person” –

in the definition of “personal injury” made it absolutely conclusive that the relationship existed. That was the ultimate crux of her Honour’s reasoning, complementing, of course, the proposition that Justice Bell has identified, namely that 12(1)(c) can really only apply to compensation to relatives actions. That is the first point.

The second point, if I can paraphrase the Chief Justice’s synthesis and turn it around to the way that makes sense to identify the difference between the parties. The appellant’s position is that 12(2) has work to do in relation to compensation to relatives’ actions and one does not need to go any further. Our point is that there is no work to do which is a direct conflict between the two positions but our qualification is this. That it is necessary if there is work to be done, as the appellant contends, it is necessary to identify with some precision what that work is and, depending upon what that work is, you need to then address what we say is the Cooper Brookes approach to statutory interpretation, namely, you examine the probability and whether there is a good reason to accept that or a good reason to adopt the view for which we contend. That is the second point.

The third point, Justice Keane in an exchange about the expression “loss of expectation of financial support”, with respect, one always feels uncomfortable saying correctly to a member of this Court, but the expression “loss of expectation of financial support” when your Honours look at Ruby v Marsh and this is the point that we have developed in our written submissions from paragraphs 38 through to 40. The short point is this, it is quite correct to say, page 651 of Chief Justice Barwick’s report in Ruby v Marsh that his Honour used the expression “loss of expectation of financial support” but you have to put that in the context of what Ruby v Marsh was all about.

Ruby v Marsh was only about a claim for loss of earnings and the debate in Ruby v Marsh was whether or not the loss was suffered for the purpose of calculating interest prospectively after the person died so you take into account the accumulation of when the earnings would have been suffered and say the interest only runs from that point. Ruby v Marsh decided no, the loss in relation to the foregone earnings is the loss of expectation that accrues at the moment of death and that makes entire sense of the Chief Justice’s emphasis that the claim is not for loss of earnings which is the full expression that leads on to “but for loss of expectation of financial support”. You cannot take the expression “loss of expectation of financial support” out of its context which was the contrast between loss of earnings and loss of expectation of financial support.

If one goes back from that point and looks at the earlier cases, which we have referred to in paragraph 38 of the written submissions, you cannot construe, in our respectful submission, the Chief Justice in Ruby v Marsh as in any sense attempting to say that a cause of action under the Compensation to Relatives Act in its totality is merely synonymous with the expression “loss of expectation of financial support”. It is not just the earlier cases that preclude that parallel, as we have identified in paragraph 40 of the written submissions. Both the previous Chief Justice and Justice McHugh have emphasised that the true expression for a measure of damages in a compensation to relatives action is any material benefit, and Justice McHugh’s expression, which we set out at the bottom of page 13, is really very clear. The loss is:

for the loss of “financial support or its equivalent” –

That provides the full answer to Justice Keane’s inquiry, and it highlights a point that we emphasise in our submissions. The language is critical, and the language of 12(1)(c) is not a cause of action for death. It is not a cause of action under the Compensation to Relatives Act. It is a cause of action for loss of expectation of financial support. The statutory context suggests that what has been extracted is a particular kind of loss, a particular element of loss, that would be recoverable in compensation to relatives actions, and it is that element of the award to which 12(2) applies. That is the third point.

The fourth point, Justice Crennan’s inquiry about Wentworth and how it is to be applied. What bedevils the application of Wentworth is the very point that Chief Justice Spigelman endeavoured to express in R v Young and PLV and the point that the Court of Appeal in Victoria did not accept, namely that there is some kind of distinction for the purpose of statutory construction between what Chief Justice Spigelman called construction that is literal in total context – his Honour seemed to think that Cooper Brookes was an example of that, where the word “company” was treated as if it meant “subsidiary company” as distinct from “holding” – his Honour was quite happy, with respect, to say that to take the word “company” and give it a totally different meaning, “subsidiary company”, was not reading in. It was constructional, literal in total context.

Then his Honour says Wentworth is a different case that involves reading in or reading up or reading down, whatever vertical orientation you prefer, but that is in a context where again you need to look at what was being talked about in Wentworth, namely a provision that said if an agreement had an effect upon tenants’ rights, then you would have a certain consequence. The only agreement that was relevant was not an agreement between the tenant and the landlord; it was an agreement between the landlord and some other tenant. Unsurprisingly, the House of Lords said if the statute provides that an agreement is to have an effect, it necessarily means the agreement between the parties; the landlord and the tenant. If you are going to give it a meaning that goes beyond the landlord and the tenant, you are changing the text. You are not just saying “This is what ‘agreement’ means”, you are giving it a quite different connotation.

CRENNAN J: Well, what divided the members of the Court of Appeal was taking a different approach to the application of Wentworth. Are you saying what they could have done is not even worry about reading up or reading in but adopt some more ample interpretation of the word “claimant”?

MR TAYLOR: Essentially, yes, but our ‑ ‑ ‑

CRENNAN J: As per your example of “company” in Cooper Brookes?

MR TAYLOR: Yes. Your Honours, our essential point is this: and it ‑ ‑ ‑

CRENNAN J: So, did they err, the majority, in saying that the literal meaning did not include the deceased person, the literal meaning of “claimant” in subsection (2)?

MR TAYLOR: Can I split the answer to your question up, your Honour, by distinguishing between literal meaning and legal meaning? We do not dispute that if you take 12(2) on its own, remove all the context, “literal” meaning “claimant” means the person who is making the claim and it does not mean the person who died, but that is not the right approach and we prefer, in our submissions, to emphasise what this Court has been saying for 30 or 40 years that legal meaning is what is involved and legal meaning comes from the connotations that come from the total context and purpose that is involved.

My direct response to your Honour’s question is this: the consistent approach of this Court from Cooper Brookes through Project Blue Sky, Alcan, Thelander, and most recently in Gillespie‑Jones, a case that your Honours decided in August last year, has been a continuous repetition of an acceptance of Justice Wilson and Justice Mason’s approach in Cooper Brookes and that ultimately boils down to a simple proposition, is the Court satisfied that there is a good reason to depart from the grammatical meaning?

Can I respond very directly to your Honour Justice Crennan’s point about what we say in relation to the application of Wentworth, and it is to draw your Honours’ attention to what the Chief Justice and Justice Bell said in Minister v SZJGV, 238 CLR at page 642. The particular passages are at pages 651 and 652. In the middle of page 651, about halfway through paragraph 9, your Honour, right almost in the bullseye in the middle of the page there is a reference to footnote (23) and then it is the sentence that follows after that. I always find it distracting to read out, distracting for the hearer. The point is: paragraph (24), the Chief Justice and Justice Bell recognise and accept the authority of Cooper Brookes. Then one goes over to the next page, the paragraph that begins at about line 10:

This approach is reflected in decisions of the Courts of the United Kingdom.

That, we submit, what your Honours were saying, is that there is no real distinction between a proper understanding of the approach for which Wentworth is endorsing and the Cooper Brookes approach. What makes that more persuasive is the obvious endorsement in the judgment of the somewhat more flexible approach of Lord Nicholls in the Inco Case and then the paragraph that begins about line 25:

The limits of the judicial role, as pointed out by Lord Nicholls, require that the courts “abstain from any course which might have the appearance of judicial legislation” ‑

and that is the emphasis. That is the real driver for this, not formulaic setting of conditions, one must not legislate. Your Honours then go on to set out the three matters, which is obviously an impressionistic endorsement of the substance of the Wentworth test, but the last part of the sentence, what must be satisfied as the third condition, is “the substance of the provision parliament would have made”, and that is important, as we understand what your Honours intended, because it suggests that one searches for substantive intent, not individual words, and it is the grappling with the difficulty of finding individual words that makes the application of the Wentworth test so hard.

I hope that is a specific answer to Justice Crennan’s inquiry which, shortly put, is we say there is really no difference between the Wentworth test and Cooper Brookes, understanding both properly, and if there is a difference, the consistent trend of authority in this case has been to accept the subtlety of the good judgment approach of Justices Mason and Wilson.

CRENNAN J: So are you saying the true meaning of “claimant” in subsection (2) of section 12 in the Civil Liability Act includes a reference to the person bringing the action and to the deceased?

MR TAYLOR: No, it includes ‑ ‑ ‑

CRENNAN J: How do you work it?

MR TAYLOR: ‑ ‑ ‑ only the deceased.

CRENNAN J: Only the deceased?

MR TAYLOR: Only the deceased, and the reason we say that ultimately is because of our primary submission, when you look at a proper construction of 12(1) ‑ ‑ ‑

FRENCH CJ: When you say “only the deceased”, do you mean in the application of that subsection to a Compensation to Relatives Act claim?

MR TAYLOR: I think I would prefer – the words get in the way because you cannot bring an award for loss of expectation of financial support except in the context of a Compensation to Relatives Act claim. In that nuance I would say yes. But in a purely analytical approach, emphasising the words, I would go back to saying an award for loss of expectation of financial support. In making that award, you can only address the earnings of the person who has died. The problem in the construction is not in identifying that as the intended end result; the problem is that of finding the words that compellingly lead you to that conclusion, and this is the problem that has existed.

Justice Garling had one way of expressing that conclusion. The Court of Appeal had a slightly different way of inserting the words “or deceased”. In our written submissions, we use the expression “the injured person” which has the difficulty, of course, that my learned friend points out, namely, that the Compensation to Relatives Act includes the notion of injury as underlying that cause of action.

So there are two other ways you can grapple with articulating this. The one we have identified in the outline that we have handed up to your Honours is the notion of using the expression “the impaired person” because that takes up the definition of “injury” from the Civil Liability Act and it does exquisitely identify that the impaired person is the person who suffered a physical injury and that is close to finding a form of words that gets to the result where it is only the earnings that have been lost to the person who has died.

The other way of grappling with expressing the same result is Justice Keane’s suggestion – perhaps I was presumptuous to put it as a suggestion – but the exchange between Justice Keane and my learned friend earlier where the suggestion was “claimant” meant, in 12(2), the earnings upon – “the claimant’s earnings” meant the earnings upon which the claimant in the proceedings was relying to substantiate the award for loss of expectation of financial support.

GAGELER J: That would be a much broader expression, would it not? That would also be an expression that would capture the claimant’s own gross weekly earnings ‑ ‑ ‑

MR TAYLOR: No, your Honour, the claim ‑ ‑ ‑

GAGELER J: ‑ ‑ ‑ if the claimant was relying on those weekly earnings.

MR TAYLOR: I am sorry, your Honour, I should not have interrupted, but the answer is no because you have to go back to the notion of financial support which was the other emphasis that Justice Keane identified in his interlocutor question of my learned friend. If the section just said “support”, home and hosed. We would not be here. But it does not. The very notion that it introduces an adjectival qualification on the concept of “support” prompts the inquiry what does the adjective mean. It is clearly intended to be a limiting adjective and the only sensible meaning is related to the earnings of the person who has died.

GAGELER J: This actually highlights a problem that I have with your submissions because, on your construction section 12(2) would say nothing about the very case your opponent says it speaks to, that is the case of a spouse who is forced to give up work as a result of the death of the other spouse.

MR TAYLOR: Your Honour, we do not shrink back from the proposition, but if that proposition could be made good, 12(2) would not apply to it. The way in which that measure of damages has been articulated in the past has really been in situations like Nguyen where the surviving spouse chooses – and Wright v Croker is another example – to give up employment as a means of substituting themselves as the service provider for the deceased person.

Justice Brennan in Nguyen contemplated that there may be circumstances where you say what has truly been lost is the service, not financial support. The next question is how do you value it? In most cases, or perhaps many cases, it is going to be simply the value of providing substitute services.

Where you have a spouse, or perhaps other particular circumstances, there may be a reason for saying that the measure of the loss is the income that has been foregone and provided, as Wright v Croker, when you get to the Court of Appeal judgment, there is a specific finding that the reasonableness of giving up employment was not challenged as on appeal, so you have a situation where it is reasonable to give up employment, that then becomes the measure of loss for the services that have been foregone as a result of the person’s death.

That is all perfectly acceptable but it does not constitute damages for loss of expectation of financial support, and we come back, in our submission, to ultimately, if your Honours accept, and we do not resile from the proposition, if your Honours accept that none of the other provisions of the Civil Liability Act limit damages of the kind for which my learned friend contends, so be it. All that does is demonstrate the force of our submission that 12(1)(c), in relation to damages for “loss of expectation of financial support” means what it says. Could I engage just in a digression footnote? My learned friend ‑ ‑ ‑

CRENNAN J: Except, I suppose though that the fatal accidents claim has a sui generis aspect which is that there is no requirement for any payments in relation to pain and suffering. I think Justice Basten might have made that point, that there is a distinction to be made in relation to compensation to relatives claims.

MR TAYLOR: There is the difference in the measure of damages that applies, but what we would say, your Honour, is that observing upon that difference does not provide a basis for identifying any legislative purpose in relation to the wording or construction of 12(2). One is grasping at straws to say, because there is a difference without any contextual justification for identifying the reality that there is been a choice made to embrace that difference, all of a sudden it becomes a legislative purpose and policy. That is the very kind of error which this Court has consistently said you cannot embrace. It is linked to our proposition that one searches for probable intention, not just simply recognising something that might conceivably be the intention, and because there is a statutory construction that matches it, bingo, you are home and hosed.

Can I just digress to the footnote that I was going to add? My learned friend drew attention to Justice Adamson’s decision in Goddard, which is a decision about section 15 of the Civil Liability Act. My learned friend says it is wrong, we do not suggest it is right.

CRENNAN J: Well, it does not say anything about section 12 in any event.

MR TAYLOR: It does not say anything about section 12. My learned friend was concerned that if Justice Adamson was right then you have got other sections of the Civil Liability Act that operate to restrict Compensation to Relatives Act claims measure of damages and that impinges upon his construct. We are quite happy to say your Honours do not need to get into anything other than section 12 and we do not positively suggest any other section applies.

BELL J: The submission depends upon reading “loss of expectation of financial support” literally in a way that is more confined than the way damages for compensation to relatives has been explained in judgments of this Court, including before the enactment of the legislation. So one reads the expression literally and then comes to sub (2) and a fair bit of work is to be done in reading “claimant” as injured person or impaired person.

MR TAYLOR: Your Honour, we do not accept the first proposition that judgments of this Court – or that there is a precise equivalence between loss of expectation of financial support and damages under the Compensation to Relatives Act, but your Honour has heard me on that, and it may be your Honour does not accept that proposition. But we do say it is not correct to say that there is a complete synonymity between loss of ‑ ‑ ‑

BELL J: Because courts in using that expression have pointed out that the measure of damages in such a claim goes beyond financial support. That is the point you make?

MR TAYLOR: Yes.

BELL J: Yes, I understand.

MR TAYLOR: Now, to go to your Honour’s second point, the question of whether or not there is a fair bit of work to be done in dealing with the expression “claimant”, let me address that in this way. The starting point, which is a good starting point for someone in my position, although not necessarily compelling to your Honours, is that both Justice McColl and Justice Basten, despite the appellant’s submissions here and below, all expressed themselves in categorical terms that the earnings of the claimant were irrelevant. Those findings appear in paragraphs 8, 23 and 42 of Justice McColl’s judgment, and in Justice Basten’s judgment at paragraphs 68 and 71.

CRENNAN J: Were Croker v Wright or Oldfield v Mahoney referred to at all in the decisions?

MR TAYLOR: No, your Honour. I am absolutely certain about Croker v Wright. I just have not checked Oldfield v Mahoney but it certainly does not – my learned friend tells me no.

BELL J: Mr Taylor, for my part I understood Justice Basten was identifying what his Honour saw is an illogicality in the reasoning of the primary judge. The primary judge had observed, what is the point of having regard to the average weekly wages of the claimant executor or administrator? I think Justice Basten’s point was to say in such a case the answer is 12(2) has nothing to say. In such a case the earnings of the executor or administrator, assuming that person is not a person ‑ ‑ ‑

MR TAYLOR: Is a relative.

BELL J: Is not someone who will benefit from the award, are plainly irrelevant. That is not the same as saying that when a person for whose benefit the claim is being brought has suffered a loss of the kind in Croker that their average weekly earnings are not relevant. That is as I understand his Honour’s reasoning.

MR TAYLOR: Precisely, but what is significant about that is that his Honour then did not go on to deal with the question of the relative and his Honour – therefore, it is implicit in what his Honour is saying that the literal construction refers only to what we have called in the outline of submissions “the plaintiff on the record”. This is another difficulty with my learned friend’s construction. If one wants to start with the proposition that is a literal construction, “literal construction” means “the person on the record”. It does not mean the person for whose benefit that plaintiff may ultimately have to account.

Now, it is a slight step I appreciate, your Honour, of going from a person on the record where that person has to account for the individual beneficiaries, and your Honour may not be troubled by the step, but as an exercise of analysis, to the extent that literal wording needs to be focused upon, the literal wording of 12(2) in “claimant” does not include the relatives. One has instantly gone to the concept of legal meaning and it is that move from literal to legal meaning that has to be educated by context.

GAGELER J: That is unless “claimant” is taken to mean a person who brings or is entitled to bring a claim, in which case it would include the relatives, would it not?

MR TAYLOR: Contingently, as your Honour appreciates what I mean by that, and only one of the relatives, but one goes back to our primary point which is not to play with or to massage the word “claimant” on its own but to put it in its total context. Can I attempt to do that in this way? One of the points that Justice Basten identified in his judgment, which your Honours will see at paragraphs 63 and 64, and this is perhaps ‑ ‑ ‑

FRENCH CJ: What page of the appeal book?

MR TAYLOR: Page 66, your Honour. This is perhaps a direct response to the last exchange between myself and Justice Gageler. The definition of “claimant” in the legislation as it was originally enacted did include the expression that Justice Gageler identified, a person who claimed or was entitled to claim. But as Justice Basten points out, and this is in the middle of paragraph 63, there were various amendments to the legislation which took – the principal ones, the changes to sections 10 and the insertion of 11A were made with effect from December 2002. I think it is Act No 92.

His Honour identifies that there were these amendments. First, the definition of “claimant” was amended, so it goes, omitted from section 3. Secondly, three sections were removed, being sections 9, 10 and 11. His Honour does not identify that section 11A was inserted and the significant difference between section 10 and section 11A was section 10 previously specifically referred to an award of damages to claimant and section 11A simply said “you cannot award damages contrary to this part”.

So you had three changes that occurred, two of which his Honour identified. Namely, the definition disappears, the specific limitation on awarding damages to claimant disappears and it becomes substituted by a prohibition against damages contrary to the Part. His Honour then says, and this is the sentence at the bottom of paragraph 23:

That approach may have been adopted because of the range of topics contained within the amended legislation, the purposes of which were varied and not readily amenable to general definitions applying throughout the Act ‑

That is important because it suggests that one has to be very careful about embracing any literal, merely grammatical, non‑contextual meaning of the term claimant.

FRENCH CJ: When you use these words “literal” and “grammatical”, do you mean anything different from the ordinary meaning or meanings?

MR TAYLOR: No, no, your Honour. This is one of the problems ‑ ‑ ‑

FRENCH CJ: They have a sort of pejorative flavour about them which ‑ ‑ ‑

MR TAYLOR: No, no, I was not intending to do that. I intend to find a form of words that has a register that is clear to everybody and that is why I have been using the distinction between literal and legal and perhaps I should confine myself to that because I think your Honours fully appreciate the nuance that I am intending to convey, and if I slip into a grammatical or ordinary, they are all in the dichotomy between literal and legal meaning.

What we submit, your Honours, is that the relevant context for construing claimant in section 12(2), after these amendments are made, are a very important part of the context and they are very important because of two particular considerations. The first is that section 12(2) forensically, we would say, is clearly intended to have a distributive application to all three of the heads of damages in 12(1) and it is intended, with our forensic flourish clearly, to have that distributive application and we would say, consistently. The only way it can be given a consistent application, in our respectful submission, is to identify the integer for the calculation of loss of expectation of financial support as the earnings of the person who is no longer there, the deceased.

BELL J: With the consequence that in cases, albeit perhaps relatively rare cases, where the loss for which the claim is made, or at least partially made, in a compensation to relatives action, is the loss of weekly earnings by the spouse or other dependant or other claimant, and in such a case the high earning spouse or other entitled claimant is not the subject of the limitation that you say is evident.

MR TAYLOR: That is so, your Honour.

BELL J: When one looks at claims for damages arising under the Compensation to Relatives Act, there will be – if one takes as the evident purpose of section 12 limitation on recovery in relation to high income earners, there will be an anomaly because in the construction for which the appellant contends, the deceased’s high earnings are not caught and in the construction for which you contend ‑ ‑ ‑

MR TAYLOR: The relatives’ high earnings ‑ ‑ ‑

BELL J: ‑ ‑ ‑ the relatives’ high earnings are not caught.

MR TAYLOR: No. Your Honour, we embrace that proposition. Whether one characterises it as an anomaly is another evaluative question.

BELL J: Indeed.

MR TAYLOR: But our submission your Honours precisely grasp. One looks at what work 12(2) does in relation to claims for loss of financial support and one does not speculate. If one accepts the proposition that “loss of expectation of financial support” means what we say it means, one does not then engage in speculation or any concern about the effect that might exist in other places.

There is a good reason not to do that and that is because the cases rather suggest the recoverability of damages on that other hypothesis requires a close factual analysis of the reasons that justify moving from valuing the services themselves as distinct from going to the income that has been foregone. That factual investigation is critical to any judgment about whether or not shutting the door or opening the door in 12(2) is a reasonable view.

The second way in which we put our argument is this. We have referred to this, briefly, in paragraph 39 – I am sorry, I should not guess – paragraph 17.2 of the written submissions. We point out that there are other provisions of the Act where there has been an attempt and, in some places, a specific differentiation between the entities that I have described in the outline of argument. I have used the expression “person on the record” or “plaintiff on the record”. That meaning is sometimes picked up in various sections where the expression simply “person” is used, and section 26BA is an example of that.

In other instances where the legal person or representative has been intended to be included, that is picked up in a specific reference in section 15B(7) and 15B(6) are examples of that. The particular point that we make in paragraph 17.2 of the submissions, is that there is a specific differentiation in the language of the Act in sections 15B and 18, where “claimant” and “dependant” are used in quite different senses.

That totality of considerations which, to summarise, is one, the removal of the definition; two, the apparently related changes to sections 10 and the insertion of 11A, coupled with the reality in the Act that Justice Basten identified, namely that there are divergent uses for different purposes throughout the Act of the expression “claimant”. When one comes to put the totality of those considerations into account one has to be very careful indeed about being satisfied either of the literal use of the term “claimant” or the notion that “claimant” is used in a sense of referring to an eligible relative who may be making a claim. That then takes us to the substance of what we say in relation to whether 12(2) has any work to do.

FRENCH CJ: Just before you move to that, is it right to say that the relationship between loss of earnings and claims for economic loss of the kind mentioned, for example, in (a) and (b), in particular (b), is much more direct than the relationship that would exist between the loss of earnings of a deceased and the loss of expectation of financial support by a claimant under the Compensation for Relatives Act?

MR TAYLOR: If I understand your Honour’s question correctly, yes, and can I test it by the step - there are a number of steps involved in going from the deceased’s hypothetically lost income to the individual claimant and that of course includes vicissitudes, leave that aside; it includes the deceased’s own expenses, leave that aside; it includes an impressionistic probability of the extent to which benefits may have been provided even if they were available.

FRENCH CJ: That is the kind of qualifying factor I am pointing to.

MR TAYLOR: Yes. But those are steps that are ancillary to the first step, namely which is identifying the potential availability of earnings for those qualifications to be applied to. So what we say is the essential and common factor to all three awards is always to identify what is potentially available and that is always going to be and only going to be, if we are correct, the earnings of the deceased.

It makes, in our forensic submission - and it is not just an opportunistic one - our forensic submission is that to go then to recognise that there is a further series of steps to be engaged in in awarding damages within the compensation to relative’s umbrella for the benefit of individual claimants does not really inform the construction exercise. It is different in those ancillary steps, not different in the beginning step.

BELL J: This argument in part builds on the idea that the repeal of the definition of “claimant” has some significance. One looks at “claimant” as it applies for the purposes of personal injury damages as perhaps having a singular meaning in light of that legislative history. Is that part of the argument?

MR TAYLOR: Yes, it is, your Honour.

BELL J: Looking at legislative history a little more broadly, what do you say to the other aspect that was significant, so it seemed to me, in Justice Basten’s reasoning that under the Motor Accidents Compensation claim, the like provision is drawn directly by reference to the injured or deceased person’s net weekly earnings?

MR TAYLOR: Your Honour, we have dealt with this in the written submissions, but the short point is this. If it was a situation where one simply had a rubber stamp of one legislative provision and put into another, there may be some force. But the critical difference is one that simply really highlights the ambiguity in the problem in this case. That legislation did use the expression “injured or deceased”. It did not use the term “claimant”. So the $64 question is whether the legislature in using the term “claimant” was either intending to depart from the expression “injured or deceased” or was treating it as synonymous with those expressions.

BELL J: I raise the point in the context of the significance you place on the inference to be drawn from the decision to repeal “claimant” as it applied generally with the view that “claimant” is to be seen as having a particular meaning as it applies here, in a circumstance where Parliament has considered this very matter in comparable legislation and adopted a different formulation.

MR TAYLOR: Your Honour, we answer that, I hope not in any sense flippantly or directly, by saying it is the context of this legislation that is critically important and the amendment is made in this legislation, and that is a critical distinction, and because the amendment is not just the withdrawal of “claimant”; it is complemented by the different treatment of sections 10 and 11A as well. Again, minds may differ as to the extent of nuance that you can attach to that, but we would urge upon your Honours that it is a qualitatively different set of facts, and it would be dangerous to set a preference in defining the probability of statutory construction from the Motor Accidents Compensation Act or the Workers Compensation Act as distinct from what is a direct change of the legislative provisions in the Civil Liability Act itself.

Your Honours, what we have said in the written submissions about the hypothesised classes of damages that my learned friend has identified as possible claims, with respect – and I hope this is economical rather than unhelpful – I do not think I can put it any better than I have, that there are the four categories of claim.

We say that the services that have been foregone or lost, if they are to be compensated for, they are not compensation for loss of earnings, and that is the point that I have dealt with before. In relation to the hypothesis of synergistic income, it is a hypothesis that is ephemeral. There may be situations conceivably in which the notion of the label of synergy has some content, but you cannot drive statutory construction in terms of sensibly finding a good reason to identify such a concept as a statutory purpose without having a clear understanding of what facts may exist.

The only case that we have found is the dancing partners, Burgess where the notion of a synergistic claim failed for the reason that when you analyse it you are confounded by the difficulty of a situation of what does synergy mean. It is one of those terms that almost defies understanding. It obviously has a factual basis of two people co‑operating. But do they co‑operate by providing services or do they co‑operate because of some kind of marriage of the minds, a complementarity in their reactions or timing, or so forth? That is not, and never has been, a benefit which is compensable under the Compensation to Relatives Act. Services are. What does synergy mean? It is the ephemeral nature of that inquiry that makes it unsound to go to the proposition of saying, well, because maybe, conceivably, on some set of facts that no one can identify for us, that was the statutory intention. That cannot be right.

The fourth point that has been put up as the hypothesis is the provision of a loan or a guarantee. Could I respectfully commend to your Honours what we have said about this in the outline that I handed up this morning? It represents a slight modification to the way in which we have put things in the written submissions. Your Honours will see this really in paragraph 8 of the outline.

In the written submissions we were prepared to accept that both the construct of a loan and a guarantee might fall within the description of loss of financial support. We want to resile from that proposition in relation to the provision of a guarantee. It is not financial support and it is not provided to the debtor. It is a willingness of a third party to accept liability. It may have some consequential advantage to the debtor, but it is not financial support to the debtor.

So the only situation that we intellectually can construct as one in which there is something that qualifies as financial support might be the provision of a loan, but we address that partly in the outline by saying in 99 cases out of 100, and maybe all, that loan is going to be valued by reference to objective commercial terms.

Secondly, the notion of financial support in the context of 12(2), in our respectful submission, on a proper construction of the legislation is financial support that is related to earnings. A loan is never going to match that or satisfy that description because it is going to be a benefit provided from accumulated assets or a liability that has been incurred somewhere else.

` For that reason, not even the notion of a loan constitutes the kind of financial support to which section 12(2) is directed. That is the reason why my second point was in response to the Chief Justice a synthesis, the qualification that I will summarise in this way.

Clearly the primary position that we adopt is that 12(2) has no work to do in relation to any of the kinds of damages for which my learned friend contends. Our fall‑back is this, that grappling with the nuances of meaning that might attach to the notion of financial support we are prepared intellectually to accept the possibility that the provision of a loan might generally constitute financial support but one is then driven back to the notion of what legal meaning “financial support” has in section 12, and 12(2), in particular.

In that context, financial support is, in its preferable legal meaning, directed to the concept of the earnings of the deceased. Otherwise, one has a situation where the limit would apply in relation to the consequences of a loan by reference to earnings and there is, in our respectful submission, a dissonance between using one criterion that has one particular character of revenue to apply as a limit to another.

The point that we ultimately come back to is what emphasis is to be given to this Court’s approach to statutory construction, in particular in Cooper Brookes. The history of – as your Honours will appreciate better than any of us on this side of the Bench - statutory interpretation and its application in its myriad cases is often bedevilled by the difficulty of picking out the right words to express the concept. I think Justice Crennan and the Chief Justice alluded to this problem earlier. Really, one does not get any better principle than what appears on page 321 of Cooper Brookes 147 CLR. Their Honours say this:

But the propriety of departing from the literal interpretation is not confined to situations described by these labels.

Their Honours mean “absurd”, “extraordinary”, “capricious”, “irrational” or “obscure”. This is the sentence that is the real principle and it is the principle of this Court, in our respectful submission, as consistently applied and should continue to do:

It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned –

It may be put against us that that expression is primarily concerned with the operation of the statute and the context suggests that that is the background from which it comes from the earlier passage, but that, in our respectful submission, is to put the wood for the trees. Whether one is concerned with identifying statutory purpose or intention from the words themselves or having examined the question of operation and coming back to look at how that informs what the words mean, in either sense, in both senses, the question of principle disciplined by the restraint that no court should legislate is always and has only ever been that of adopting a construction for which there is good reason in the statutory provisions.

None of the other conditions about reading up or reading down, or anything else, really matter. It is the substance of what Parliament intended and the Court should not be deflected by the difficulty of finding quite the right word to reach that result. Cooper Brookes is a really good example of that proposition because when you go through the almost byzantine nuances

of the amendments to the tax legislation that their Honours referred to in Cooper Brookes, what is striking is their Honours do not seem ultimately to come up with a precise form of words into which the statute should have been rewritten.

What they simply accept is that on the proper construction the provision should be treated as referring to the subsidiary company, and they do not torture themselves by finding the precise comma, punctuation mark, or actual word that goes in there. They just accept that that is the position that one comes to. Your Honours, those are the first to fourth respondents’ submissions.

FRENCH CJ: Yes, thank you, Mr Taylor. Mr Donaldson.

MR DONALDSON: Your Honours, in light of Mr Taylor’s submissions, which we respectfully adopt, there is really very little we need to add. But can I just add a few propositions at a high level? I think it is accepted that there is no impediment on the court’s duty and entitlement to seek out by reference to text and context the intent of the legislature that if a particular rational purpose that may potentially have been intended to be served by the legislation can be identified that is the end of the task. What your Honours have to do, with respect, is perform a rather broader exercise of identifying, by regard to the text of the whole of the legislation and its context, what was intended by Parliament.

FRENCH CJ: Maybe an easier question to ask is what is the statutory purpose?

MR DONALDSON: Quite so, your Honour.

CRENNAN J: Given that the intention of Parliament, as we have said several times, is a metaphorical expression.

MR DONALDSON: Yes. Now, we adopt, with respect, what Mr Taylor says about the proper construction of section 12(1)(c) and the proposition it is in fact not directed towards claims of the type which the appellant identifies as being those which this legislation was intended to address insofar as it relates to compensation to relatives claims, that is, the claim of the type identified is not a claim which can naturally be described as a claim for loss of expectation of financial support. But, even if that proposition is not correct it is not the end of the matter and there are two factors that have a role to play in determining legislative intent. The first is the inherent high improbability that the situation that the legislature was seeking to address by its inclusion of section 12(1)(c) was the claim of the kind that the appellant identifies.

There is a small catalogue of potential claims identified in the appellant’s submissions, but as Mr Taylor has identified, it seems that there is really little or no sound basis for suggesting that anything other than the claims where the claimant has foregone income as a result of replacing the deceased person’s services serve to be modified in some way by the reading of section 12 for which the appellant contends. It is a relevant and important factor that, in our submission, it is highly improbable that this legislation was seeking to identify, isolate and address that particular tiny species of claim through the inclusion of 12(1)(c).

That proposition is made good in part by reference to the two principal authorities to which the appellant directs the Court in identifying the existence of claims of this kind. In Mehmet v Perry (1977) 2 All ER 529, the court described at page 532 the circumstances that gave rise to a finding that in that case, the loss of income through replacement of the deceased’s services was a proper measure of loss of the deceased’s services.

In that case, it was in the highly extraordinary situation that the deceased and the claimant had children with a rare blood disorder and due to requiring frequent blood transfusions and medications and the attention of their parent, it was appropriate that the parent leave work rather than substitute for the lost services in some more economical way.

The other case that is relied upon, of Wright v Croker, in the Court of Appeal judgment at page 6 there is reference to the rather unusual circumstances of that case as well in that it was found, and there was no challenge to the finding, that due to the claimant’s career in the navy – that is, frequent absences at sea – there was no more economical solution available to him to the care of his children other than giving up his career in the navy.

So, not only are we dealing with a relatively rare subset of cases and relatively rare subset of claims, namely claims in which the claimant loses earnings as a consequence of substituting for services previously provided by the deceased, it will only be on rare occasions that the proper measure of loss in connection with claims of that kind will not be the commercial cost of the services, and of course once the measure of loss is the commercial cost of the services the modifications sought to be introduced by section 12(2) to the calculation of awards becomes irrelevant. It is similarly irrelevant in relation to synergistic claims and the other categories on which the appellant places reliance for reasons that Mr Taylor has outlined.

The second proposition that we wish to put in connection with those matters which the Court can and should have regard to in determining whether or not the legislative intent that the appellant identifies is an

accurate one is the inaptitude of the language that has been employed in section 12 as a means of achieving that intent. In determining whether it was indeed the intention of the legislature to deal with this, the subset of claims to which the appellant relates, it is relevant to observe that the language of 12(c), even if it can be interpreted in the way for which the appellant contends, was a most indirect and unusual way of going about achieving that alleged end. Apart from those two supplementary observations, we adopt Mr Taylor’s submissions.

FRENCH CJ: Thank you, Mr Donaldson. Yes, Mr Poulos.

MR POULOS: Both my learned friends’ submissions proceed on the premise that the purpose of this Act is to deprive survivors of full benefits. That has not been stated in clear language as they say. They direct the attention of the reader to economic loss, concept of earnings. They direct the reader to the concept of the irrelevance of the claimant’s earnings insofar as they exceed a certain sum.

Insofar as I follow the arguments that have been put by the respondents, what is to say that the only intention of the legislature in promulgating this Act was to ensure that a person who was a high income earner who had a claim in respect of a loss of financial support should be restricted by the words in section 12(2).

All the discussions that have taken place so far relate to the Compensation to Relatives Act, and in this Court in recent times the necessity to have regard to the existence of that other Act has attracted the attention of judges, particularly in Eaton’s Case where three of the Judges of this Court have had regard to police legislation. The question that arises when looking at that problem is this: what was the intention of the legislature in bringing forward a new Act when the legislature could have used words that were clear to achieve the effect that my learned friends say by these complicated, if I may say so, methods of parsing words?

Why was it not the case that clear words were utilised by the legislature when they knew that an important collection of rights had traditionally been provided by ancient legislation, if I may put it that way. We are dependent, they say, upon the fact that the topic has been raised in 12(1)(c). That, as I see their argument, is the sole purpose of their argument, to say that the topic is addressed.

Well so be it, but if the legislature meant that all rights be changed by the words that were put into 12(2), it has not made itself clear. They say that this Court should do so. We say that Cooper Brookes, as quoted by my learned friend, has to be read in its entirety. The passage that he read from page 321 has this paragraph in it. I apologise if I have to re‑read part of that which has already been read:

But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.

Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended.

Now, that is the nub of Cooper Brookes - the previous page. Professor Pearce’s book is referred to there.

The rules as D. C. Pearce says in Statutory Interpretation, p. 14, are no more than rules of common sense, designed to achieve this object. They are not rules of law. If the judge applies the literal rule it is because it gives emphasis to the factor which in the particular case he thinks is decisive. When he considers that the statue admits of no reasonable alternative construction it is because (a) the language is intractable or (b) although the language is not intractable, the operation of the statute, read literally, is not such as to indicate that it could not have been intended by the legislature.

Well, the language in this subsection – section 12 has a plain meaning. My learned friend talks about literal and legal meanings, a distinction without a difference, in our respectful submission. The plain ordinary meaning, the literal meaning, all come to one end. What did the legislature mean by the words? We have said that there is only a limited application of section 12(2) because obviously having regard to the way that they have drafted section 12 altogether the legislature meant that there was going to be a limited effect on the ancient right given by Compensation to Relatives Act, since 1897 at least.

Of course, that segues off into the questions of the abolition of common law rights, et cetera, where this Court as recently with Daly v Thiering has talked about the – what I might call a dissolution of a previously powerful expression in this Court that if the legislature meant to

get rid of common law rights it, at least, should express itself in pellucid terms.

Here, the effect of the arguments against us is that the powerful terms of section 4 of the Compensation to Relatives Act are going to be dissolved by what might be described as a strained and complicated argument which flies in the face of the fact that the legislature has not provided plain words to fulfil the purpose they say the section does. When the question of consistency is addressed, and there is a consistency in this subsection, the section applies to claims by high earners.

Your Honours, the way the argument has progressed, the two courts below and in this Court, demonstrates that there is no true agreement as to what method should be adopted in constructing the section and as to what results might follow. Is there a lacuna or has a tension been achieved? In such circumstances, the Court can be left in doubt as to what particular course should be adopted. In such a case, the legislative role should be eschewed. This is an important right possessed by the people of New South Wales. This is not any mere machinery provision.

FRENCH CJ: I think we are getting into a bit of rhetoric and beyond reply now, Mr Poulos.

MR POULOS: I did, your Honour. I apologise once again. I apologise on behalf of myself and Ms Heath.

FRENCH CJ: That is all right. Yes, thank you. The Court will reserve its decision. The Court adjourns until 10.15 on Tuesday, 11 February.

AT 12.30 PM THE MATTER WAS ADJOURNED

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Susan Joy Taylor in her own Capacity and for and on behalf of the Dependants of the Late Craig Taylor v The Owners Strata Plan No 11564 and Ors [2014] HCATrans 11

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Key Legal Topics

Areas of Law

Negligence & Tort

Civil Procedure

Legal Concepts

Duty of Care

Causation

Damages

Negligence

Appeal

Standing