Turner v Kowloon Holdings Pty Ltd

[2004] HCATrans 457

[2004] HCATrans 457

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  Nos P14 and P23 of 2004

B e t w e e n -

JARROD JOHN TURNER

Applicant

and

KOWLOON HOLDINGS PTY LTD

Respondent

Applications for special leave to appeal

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 NOVEMBER 2004, AT 2.08 PM

Copyright in the High Court of Australia

MR I.L.K. MARSHALL:   May it please the Court, I appear for the applicant in both applications.   (instructed by Paul O’Halloran & Associates)

MR T. LAMPROPOULOS:   If the Court pleases, I appear for the respondent in both matters.   (instructed by Srdarov Richards Burton)

McHUGH J:   Thank you, Mr Lampropoulos.  What has happened to Mr Martin?  He was there a moment ago.

MR MARSHALL:   Other commitment.

McHUGH J:   Yes.

MR MARSHALL:   Time beat him, I think.  Your Honours, I will need an extension of time in these matters and the affidavit ‑ ‑ ‑

McHUGH J:   Yes.

MR MARSHALL:   The affidavit of Mr Haynes at pages 96 and 97 deals with that and the Full Court decision was given on 17 November and the application for special leave, I think, was 17 March.

McHUGH J:   Well, you have been advised to deal with the merits because if the merits are not there then the question of extension of time becomes irrelevant.  So go straight to the merits of the case.

MR MARSHALL: Yes, thank you. We seek to advance three propositions: firstly, that section 64 of the Workers’ Compensation and Rehabilitation Act does not apply to Part IV of the Act which -, as you will be aware, Part IV deals with the constraints on awards of common law damages whilst Part III deals with the commencement review, suspension and payments of worker’s compensation under the Act.  Part III is colloquially referred to as the bronze as opposed to the gold and silver medal, the bronze medal applicable to statutory entitlements under Part III.  Under Part IV, the gold applies to those applicants with the 30 per cent in excess disability, if there is any disability.  The silver applies for more than 16 per cent yet less than 30 per cent.

Now, your Honours, section 64 applies to Part III, we say. It has been in the Act well before the advent of the 1993 and 1999 changes which were implemented in Part IV. Section 64 has been there certainly from as early as 1981. When looking at that section and the sections around it, it is quite clear, in our submission, that it is meant to apply to Part III and not go further.

The second reason why we say section 64 is not applicable is that it has not been invoked in this particular case because the worker was, in the terms of the section, not required by the employer to submit himself for examination by a medical practitioner, arranged by the employer, provided and paid for by the employer. Now, I am essentially picking up his Honour Justice Pullin’s reasoning at page 64 of the papers. His Honour was dealing with the question of the amendment which was sought to be put forward in the Full Court. The amendment was to add ground 3 and the terms of the amendment appear at page 55, line 60, where it says:

At the hearing of the appeal the appellant sought leave to add a third ground of appeal –

The fate of that was that the Full Court did not allow the amendment and we seek to argue that because the Act refers to the insurer’s rights from time to time, what the employer has to do from time to time, the conditions precedent for the operation or the activation of section 64 did not apply in this case. What we are saying then is that section 64 does not apply but if it does ‑ ‑ ‑

McHUGH J:   But you have overcome the question of prejudice, have you not?  Was that not one of the reasons?  And Justice Pullin also agreed on the issue of prejudice, did he not?

MR MARSHALL:   Certainly at page 65, he said:

It is not necessary to express any view won the merits of this argument –

at line 71 and he adopts Justice Steytler’s reasoning there. There is no affidavit of prejudice put in, as I understand it, by the respondents and it is hard to see how they could be prejudiced in the circumstances. You see, the effect of construing section 64 in the way that it has been done is to strip the worker of his common law rights, common law rights being around for some time and absent any unequivocal, clear expression in the legislation, it is hard to see that this can be done.

You see, section 64 was amended in subparagraph (2) in 1993 and that was a time that the first legislation was put in concerning constraints in common law proceedings, but nothing was said ‑ ‑ ‑

KIRBY J:   But that is the problem that I have with the case, Mr Marshall.  There are many statutes of this kind and they keep coming out of Parliaments all around the nation in common law; worker’s compensation, tort, putting bars and restrictions.  Now, I understand how important this case is to your client, but looked at from the point of view of the High Court of Australia, it looks like just an argument about the meaning of a local statute concerning how you interpret that statute.  Normally, that would finish in the Full Court of the State concerned unless there is some matter of general principle or serious injustice or some other feature of general application.

MR MARSHALL:   Well, I suppose ‑ ‑ ‑

KIRBY J:   How do you lift the case up into this Court, because we are not just another Court of Appeal?

MR MARSHALL:   No, but where this Court sees that a statute has been misconstrued by the Full Court and resulting in an injured worker not being able to receive compensation, that is significant in the terms of the administration of justice that a worker who is deprived or stripped of common law rights – an injured worker – and because the law in the State is not clear and unambiguous, stripping common law rights – that is why we say it is a matter of significant principle to take away the worker’s common law rights and it is something which should interest the High Court ‑ ‑ ‑

KIRBY J:   These arguments would be important in seeking leave to appeal if that is required in the Full Court, but when you get to the second level appeal you really have to show some feature of the case normally that is of general importance either within the State or within the clarification of the law of other statutes that are analogous.  Now, is there anything of that kind that you can point to in this case or not?

MR MARSHALL: No. All I can point to is that a grave injustice has been done to this individual and it will just be anecdotal if I refer to other individuals, I just do not know. But where this court in Western Australia is construing section 64 in the way it is, it can be seen that not only this worker but potentially other workers, if it has not happened to other workers already, then there is a grave injustice likely to occur. That is why this Court, in my submission, ought to step in and allow this point to be argued at a hearing on an appeal.

Your Honours will have read my submissions and by looking through the Act you will have seen various sections which make it clear that section 86:

Except as expressly provided by this Act, nothing in this Act affects any liability that exists independently of this Act.

The very heading of Part IV is “Civil proceedings in addition to or independent of this Act”. Section 93B makes it clear that the awarding of damages under Part IV is independently of the Act. The Act itself primarily is to give injured workers their entitlements, but as to pointing out some widely extending principle from this State into other States, I cannot do that. All I can do is point to the position of this particular injured worker and say to you that this, in my submission, is a clear case of the Full Court misconstruing, not construing section 64 in the way that it should have been construed.

I adopt what his Honour Justice Pullin says in his judgment and also another judgment that I did provide to the Court is from his Honour Justice Templeman in Allianz v Bakalis at page 22 of the bundle of papers entitled “Copies of Material to be relied upon by the Applicant.” His Honour Justice Templeman also looked at section 64 and breaks it into its parts at paragraph 32 on page 22 of the bundle and says:

The obligation on the worker when “so required by the employer” is not to agree that he will be examined: it is to submit himself for examination.  In my view, the worker cannot submit himself unless he attends on the medical practitioner for that purpose.  This implies that an appointment must be made.  And since the medical practitioner is provided and paid by the employer, it is also to be implied, I think, that the employer should make the appointment.

In this case, it was the insurance company that made the arrangements.  Justice Templeman, at the top of page 23, says:

It is, after all, the employer who requires the worker to be examined.

It seems to us to be a clear case of a misconstruction of the legislation involving serious repercussions for the appellant.

The other point that I wanted to raise, and you will see it from the submissions, is that even if section 64 is to apply then it is a reasonable excuse for non-compliance to act upon legal advice ‑ ‑ ‑

McHUGH J:   But there was a finding of fact against you, was there not, on that point?  Was not the finding that your client had really acted on his own volition?

MR MARSHALL:   Yes, but he did and ‑ ‑ ‑

McHUGH J:   The review officer found that although the applicant had received the concurrence of his solicitor to the course of action, he had really relied on his own understanding of the Act in refusing to attend the examination.

MR MARSHALL:   Yes, but I suppose when we are dealing with lay people, the fact that he is not required to do it because he is not seeking compensation under Part III, he is seeking common law damages for which the Workers’ Compensation and Rehabilitation Act does not apply.  It is a matter for a judge to determine the extent of the common law damages.  We thought that also was a significant point.  The fact that there was a finding of fact that he concurrently held the view which accorded with the lawyer, the role of the lawyer’s advice obviously had some part to play.

Your Honours, I think probably without taking you through a number of sections in the Act to demonstrate the point that section 64 was there before section 93 and all the reasons in Part IV and the other sections in the Act which really demonstrate, in my submission, that it was not a proceeding - where in section 64 it said that there can be an examination in relation to:

his right to compensation, and to take or prosecute any proceeding under this Act shall be suspended until such an examination has taken place –

What we are saying is that in the context of this case, the ‑ ‑ ‑

McHUGH J:   You cannot get the section 64 point off the ground unless you can amend your notice of appeal, can you?

MR MARSHALL: No, I am not sure that – I think there was some reference. I did make an application to amend but I think there was some reference to that section 64 point without that specific amendment. I do not want to readily agree to that because I think it might have been there, absent the amendment point. If I just look at the notice of appeal which is at page 39, I think it might have been encompassed within it but not –

McHUGH J:   Well, it is probably page 40, ground 1, is it:

The learned Magistrate erred in law in misconstruing ‑ ‑ ‑

MR MARSHALL:   Yes, so it is certainly general there.

McHUGH J:   It does not really touch the point though, does it?

MR MARSHALL:   No, I think that is right and the other notice of appeal – I just want to check the other notice of appeal.  It is not as clear as the ground 3 which I sought to amend at the hearing of the appeal.  They are the matters, your Honours, thank you.

McHUGH J:   Thank you.  We need not hear from you, Mr Lampropoulos. 

This application for special leave to appeal must fail. The construction adopted by the Full Court of section 64 of the Workers’ Compensation and Rehabilitation Act 1981 (WA) was open to it, although, as the argument today has indicated, the contrary interpretation is also arguable. The applicant does not suggest that the case has application to other statutes in Western Australia or other States, nor do we have any indication that the point in issue is one of general or frequent application in Western Australia. It is unnecessary to determine whether or not the point is open, because it required an amendment to a notice of appeal in the Full Court, which was refused on the ground of prejudice to the respondent.

There is no other point in the case that would warrant a grant of special leave.  In the circumstances, special leave to appeal would be refused on the merits.  We do not need to consider the merits of the application for an extension of time to bring the application.  Accordingly, the application to extend time is refused with costs. 

The Court will now adjourn to reconstitute. 

AT 2.29 PM THE MATTER WAS CONCLUDED