Thompson v Roche Bros Pty Ltd

[2005] HCATrans 230

[2005] HCATrans 230

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P51 of 2004

B e t w e e n -

SHANE THOMPSON

Applicant

and

ROCHE BROS PTY LTD

Respondent

Application for special leave to appeal

CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 22 APRIL 2005, AT 12.03 PM

Copyright in the High Court of Australia

MR M.S. MACDONALD:   May it please your Honours, I appear for the applicant.  (instructed by Macdonald Rudder)

MR P.E. JARMAN:   May it please your Honours, I appear for the respondent.  (instructed by Jarman McKenna)

CALLINAN J:   Thank you, Mr Macdonald.

MR MACDONALD:   Your Honour, there are two issues in this application, one relating to the meaning of “ordinary hours” and the definition of “overtime” as it appears in the Workers’ Compensation and Rehabilitation Act (WA) and the second issue relates to whether certain inferences can be drawn from facts found. As to the first question, we submit that the decision of the Full Court was wrong in finding that “ordinary hours” in the definition of “overtime” should be taken from the relevant industrial award. We say that the Act in Western Australia has no context which would justify a finding that ordinary hours must be taken from the award, and more so, when one has regard to the 1999 amendments that are set out in my submissions.

Those amendments, in effect, remove a statutory direction that ordinary hours be ascertained from the award.  So we say that, by virtue of that amendment, the legislature has made it abundantly clear that ordinary hours must be determined by reference to their normal meaning and not by what the award says.

CALLINAN J:   Where do we find that provision, Mr Macdonald?

MR MACDONALD:   It is a book of documents that I prepared.  The book contains all amendments since Kezich.  The most recent amendment starts at ‑ ‑ ‑

CALLINAN J:   Which is the one that you are now placing weight on?

MR MACDONALD:   I place weight on the amendment, the definition of “overtime” as it appears at page 9 of my book and that definition:

“overtime” means any payment for the hours in excess of the number of ordinary hours which constitute a week’s work.

If your Honours will recall that after Kezich the Act was amended, and, at page 2 of the book, you will see at the bottom of that book the exception. “Weekly earnings” are defined and then there is an express exclusion, paragraph (c).  There it says that we exclude:

overtime, being any payment for the hours in excess of the number of hours stated in the industrial award or industrial agreement as ordinary hours which constitute a week’s work –

Now, that definition is the same as the current definition, save that the words “for the hours in excess of the number of hours stated in the industrial award . . . as” have been removed.  So that in 1975 there was a statutory direction that ordinary hours be ascertained by reference to the industrial award.  That direction was removed in the 1999 amendments. 

We say that that amendment, on its proper construction, should be read as saying that ordinary hours should not be taken from the award, but even if your Honours do not want to read it that highly, there is nothing in the context of the current Act, as there would be in, say, for example, Scott v Sun Alliance, that would justify a conclusion that Parliament intended that ordinary hours be taken from the award. 

There is a further matter which we say supports the construction intended for by the applicant and that is section 11(4) of the schedule, which is at page 9.  If your Honours understand the structure of weekly earnings, basically, weekly earnings is defined starting at page 6 of the book.  Section 11 says “weekly earnings” means – and then there is “Amount A”; “Amount Aa”, “Amount B” and, effectively, if you are under an award, you are required to have Amount A for the first four weeks, which is including overtime.  After four weeks, you get Aa, which is excluding overtime.  If there is no award, it is Amount B.  Now, when you get to subsection 3 of the Act on page 9, that says:

In the case of a worker whose earnings are prescribed by an industrial award –

and it sets out the weekly earnings.  Clause (4):

In the case of a worker to whom subsection (3) does not apply –

that is, where there is no award, for the first to the fourth week they have Amount B.  Now, if your Honours could go to Amount B on page 7, Amount B:

means the worker’s average weekly earnings (including overtime . . . )

“overtime” as defined.  If overtime is read or construed to mean the payment for hours in excess of the number of ordinary hours stated in an industrial award, then, of course, it just cannot apply to B.  So, in order for the Full Court’s interpretation to remain, you would have to have two different definitions of “overtime”, one where there was an industrial award and one where there was not. 

We simply say that the decision is wrong, and there are two elements to the special leave.  One is that it clearly is a matter of public importance.  The question is important.  It defines what a worker’s compensation will be in the event of injury.  It means, as it currently stands, that if the award, for whatever reason, says that a man’s ordinary hours are, say, 20, when in fact he is obliged and is working on a regular basis 60, when he is injured, he is not compensated for 60 hours but he is only compensated for 20.  So the question is relevant and it is the same question that was in Kezich.  In fact, this case, the facts are almost identical to Kezich. 

The second special leave ground is that the Full Court did not deal with a submission that was put to them fairly and squarely, both orally and in writing, that the 1999 amendment should be taken to convey a meaning as to the meaning of overtime, that is, that the removal of a statutory direction indicated an intention of Parliament that the concept of ordinary hours should not be drawn from the relevant award.  Now, if your Honours agree that there is an arguable case that the decision was wrong but do not grant special leave, it will mean that this worker is left without a remedy and was not given a fair hearing, because the Full Court just simply ignored what, I submit, is a very, very fundamental and important point of law. 

As to the second issue, the inference question.  If I could take your Honours to page 102 of the papers ‑ ‑ ‑

CALLINAN J:   Mr Macdonald, was the injury sustained before the 1999 amendment?

MR MACDONALD:   No, the injury was ‑ ‑ ‑

HEYDON J:   28 January 1998, page 83.

MR MACDONALD:   Yes, sorry, the injury occurred in 1998, the second injury in 2001.

CALLINAN J:   So there were two injuries?

MR MACDONALD:   Yes.  The second injury is relevant to the second issue and the second injury – he is a shift worker, he worked 56.4 hours a week – he injured his left ankle.  In 2001 he stood up, his left ankle rolled, as he alleges ‑ ‑ ‑

CALLINAN J:   I understand that, but the reason why I ask you this question is to be assured that the 1999 amendment was in operation and applied to the relevant injury.  It rather looks to me as if the relevant injury was the 1998 one, because you seem to have assumed the burden and it seems to have been accepted that that had to be the cause of whatever happened subsequently, which, in fact, was the twisting or the hurting of the ankle.

MR MACDONALD:   Well, the hurting of the ankle was the first injury that occurred in 1998, the injury to his right knee in 2001. 

CALLINAN J:   But was it not necessary to make out your case that the second injury was a natural consequence, as it were, of the first?

MR MACDONALD:   Yes, it is.  On that second issue.  The first issue is ‑ ‑ ‑

CALLINAN J:   How does the 1999 amendment apply then?  Was there a transitional provision?

MR MACDONALD:   No, there was not.

CALLINAN J:   I mention that because there are some statements in this Court – and I expressed a tentative different view with some statements in this Court – that you do not look at amendments subsequent to the relevant events in order to assist you to construe legislation in force at the time.

MR MACDONALD:   Your Honour, his payment, when the Act was amended in 1999, if it had the effect as contended for by the applicant, surely his wages would be payable in accordance with the Act as amended from the date of the amendment.

CALLINAN J:   I do not know about that.  It sounds as if it could be right, but it may not necessarily be right.  It might depend on the transitional provisions.

MR MACDONALD:   Well, I am embarrassed to this extent, that I have not considered that and I would have thought, however, that – and it has not been raised to date against me, I might add ‑ ‑ ‑

CALLINAN J:   No.  It really only goes to your argument that you look at what happened legislatively subsequently in order to help you construe the earlier legislation in force at the relevant time.  That seems to be very much a major part of your argument on the first point.

MR MACDONALD:   It is.  Obviously, if the current Act does not apply, well, I am out of Court, there is no argument.  But we would say that the compensation payable – what are his weekly earnings is the first issue and when the Act was amended, there was nothing to suggest that he should not be entitled to weekly earnings as amended from the date of the amendment.  We do not seek it otherwise, only from the date of the amendment.  But his ordinary hours – when the Act was amended, his ordinary hours becomes ordinary hours he ordinarily worked.  That is what the Act says. 

CALLINAN J:   Was there a transitional provision when the 1999 amendment was made?

MR MACDONALD:   Not to my knowledge, your Honour.

CALLINAN J:   Does the Interpretation Act (WA) have any bearing on it?

MR MACDONALD:   Your Honour, I cannot answer that, simply because I was not alive to this issue, unfortunately.  I am sorry.  I cannot assist your Honours in that regard.

CALLINAN J:   I think I interrupted you.  You were on your second point.  You say there is an argument that was not dealt with.  Is that your second point?

MR MACDONALD:   The second point is the question of whether certain inferences can be drawn and I took your Honours to page 102 of the book, which is where Justice Heenan deals with the relevant inferences.  In paragraph 54, halfway down the page, second sentence, he says:

In view of the uncertainty of the appellant about the date of the first occurrence and the lack of any corrobative medical record of the nature or date of that injury until much later, the Review Officer did not accept that the event had occurred in the manner described by Mr Thompson to Mr Robinson FRACS or in evidence. 

The event, your Honours, is the event when the applicant worker stood up, his left knee gave way, which caused, he says, his right knee to dislocate, and the Full Court found that the review officer did not accept that that had occurred as he had described.  We say that there is no such finding, no such express finding.  That is an inference drawn by the Full Court from the facts specified beforehand and we say the inference is simply not open.  That is, the inference or the fact that the review officer did not accept Mr Thompson’s evidence as to how the event occurred is based upon the uncertainty of the applicant as to the dates of the first occurrence. 

Now, that issue is dealt with, and I will take your Honours to it if necessary, in the review officer’s reasons, but he says, “The worker in evidence said that it was 5 December and then later on said 14 December and his solicitors had earlier said 1 December as the relevant event”.  So a fact to be taken into account is whether the accident occurred on 1, 5 or 14 December is said to be a fact relevant to the question of whether or not the accident happened as alleged.

The second issue is that the worker did not seek medical attention for the first dislocation until some two months after it occurred, and that is a second fact which the Full Court says supports the inference that the review officer did not accept the worker’s evidence.  Now, if your Honours could go to page 39 of the book, this is the reasons of the review officer.  In paragraph 34 at the bottom of the page, the review officer says:

In the end I find the worker has not proven that his tendency to right knee dislocation . . . is related to his disability as claimed.  That is not to say that it did not happen as he says but there is considerable doubt in my mind –

as to cause.

CALLINAN J:   He is just saying there, is he not, that you had the onus and it had not been satisfied?

MR MACDONALD:   Well, in my submission, he is simply saying he is not questioning the fact that the accident occurred as the worker says it occurred.

CALLINAN J:   He is not making a finding that it did.

MR MACDONALD:   No, he is not.

CALLINAN J:   And do you not need a finding that it did happen as you say?

MR MACDONALD:   Well, yes, I do need a finding.

CALLINAN J:   Well, you have not got it.  He says, in effect, “Perhaps that is right, perhaps it did happen as you say, but you have not proven it”.  He says that explicitly.  “I find the worker has not proven”.

MR MACDONALD:   He says that he does not believe that there is a causal relationship between the relevant event and the injury or the first injury, that is, his injury to his left ankle.  In my submission, he is saying, “Even if he did stand up and even if his left ankle did roll, I am not satisfied that that was caused by the left ankle.  The injury to the left knee was not caused by the ankle”, and, as the Full Court says in their second inference that they refer to on page 102, that inference is drawn from the worker’s earlier history.  Now, we simply say that that inference is not open.  This

review officer is operating under a statutory regime similar to section 420 of the Migration Act, but his duty under section 84ZA is to resolve the dispute.  We say it is not permissible for him simply to rely upon the onus of proof.  There is a question of whether or not his left ankle rolled as he alleges and that is a decision he needs to make.

CALLINAN J:   The review officer was probably just letting your client down gently, Mr Macdonald.  It is clear enough that the finding is that it has not been proved.

MR MACDONALD:   May it please your Honours, those are my submissions.

CALLINAN J:   Thank you.  Yes, Mr Jarman, if it please.

MR JARMAN:   May it please the Court.

CALLINAN J:   We would like to hear you on the construction point.

MR JARMAN:   The reference to the award in the pre‑1999 definition of “overtime” was removed in 1999 purely because of the change in the definition of weekly payments payable at that time.  Prior to 1999 all weekly payments were calculated by reference to an award, either the award that applied or, if there was not an award that applied, a fairly applicable award.  So the calculations were all done in reference to an award and the definition of “overtime” also made reference to the award and that award definition had been in place since the amendments in 1975, following the Kezich decision.  But in 1999 the legislation changed, so that it was divided between award and non‑award payments.  All workers were divided into those two categories, so that, as you have heard, Amount A and Amount Aa applied to award workers and Amount B applied to non‑award workers.

The definition of “overtime” where it referred to an award had to change, because it was referred to in both Amount B and Amount A and by definition there was no award to refer to in Amount B.  So the reference to the award was simply deleted to accommodate that change in the division between award and non‑award workers, that is all.

CALLINAN J:   What about paragraph (4) on page 9?  How does that fit in?  That was something that Mr Macdonald drew our attention to.

MR JARMAN:   Paragraph (4) on page 9 is simply the reference to Amount B being the sum that is paid for non‑award workers.  Overtime is included in the definition of Amount B, but it really does not matter how overtime is defined for Amount B because it is an all‑inclusive definition.  It does not say however you define, but however you define overtime, we

roll it all into Amount B and then the set‑down which occurs four weeks later is 85 per cent of Amount B.  Whereas contrast that to Amount A, which says we roll it all in – all the remuneration gets rolled in for Amount A for the first four weeks, and then after four weeks the set‑down occurs and we take out overtime and the overtime is defined in this way.

CALLINAN J:   I do not think we need hear you any further on that, thank you.

MR JARMAN:   May it please your Honours.

CALLINAN J:   Thank you.  Is there anything you want to say, Mr Macdonald?

MR MACDONALD:   No, your Honour.

CALLINAN J:   Thank you. 

We are not persuaded that there has been any error in the reasoning and conclusion of the court below and accordingly the application for special leave is dismissed with costs.

AT 12.25 PM THE MATTER WAS CONCLUDED