Union Steamship Company of Australia v King

[1988] HCATrans 74

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl24 of 1987

B e t w e e n -

UNION STEAMSHIP COMPANY OF

AUSTRALIA

Applicant

and

SYDNEY FRANCIS KING

Respondent

Application for special leave

to appeal

Union

WILSON J

BRENNAN J

GAuTIRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON fRIDAY, 22 APRIL 1988, AT 2.00 PM

Copyright in the High Court of Australia

SlT8/l/PLC 1 22/4/88

MR B.W. RAYMENT, QC: May it please Your Honours, I appear with

my learned friend, MR_ P.R. GARLING_ for the applicant.

(instructed by Ebsworth & Eosworth)

MR J. SHAW, QC:  May it please the Court, I appear with my

learned friend, MR R. COGSWELL, for the respondent.

(instructed by Turner Freeman)

MR R.F. MARGO:  May it please the Court, I appear for the

Attorney-General for New South Wales.	(instructed by
the Crown Solicitor for New South Wales.

WILSON J: Yes, Mr Rayment?

MR RAYMENT:  May it please Your Honours, in 1933 it had been

held in the Workers Compensation Commission that the

SEAMEN'S COMPENSATION ACT 1911 of the Commonwealth

covered the field and that therefore seamen, having

claimed for workers compensation arising out of their

employment on vessels engaged in interstate trade had

no claim under the statute. The decision to that effect

is referred to at page 10 of the application book in

the judgment of the primary judge, Judge Freeman in
the Workers Compensation Commission, and it is a case

of OLSEN V R.W. MILLER, (1933) WCR 265. It had been
followed in an unreported case referred to on the next

page, a decision of Judge Langsworth in 1972.

The decision under appeal at first instance

was the first decision in New South Wales to the
contrary and, in effect, overruled those two earlier

cases. Your Honours, there were two issues before

Judge Freeman: one was, did the Commonwealth legislation

cover the field; the other was did section 46 of the

WORKERS COMPENSATION ACT validly extend the provisions

of the statute to the facts of the case.

WILSON J:  Was OLSEN's case on section 46?

MR ~NT: No, it was not. Well, I do not know that any point

arose about section 46-in OLSEN's case.

WILSON J: About a particular - - -
MR RAYMENT:	Solely the question of covering the field.
Now, Your Honours, then the matter went to the

Court of Appeal where so far as the appellant's submissions

were concerned, the case was still about those same two

issues: section 46 and the question whether the Commonwealth

Act covered the field.

The Solicitor-General intervened and put an

alternative basis of jurisdiction based on section 7

of the WORKERS COMPENSATION ACT and that submission was

adopted by the respondent. Ultimately, Their Honours,

having had submissions before them to the effect that the

SEAMEN'S COMPENSATION ACT covered the field, put for the

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purpose of dealing with the section 46 point but, we

would submit, logically covering any part of the WORKERS

COMPENSATION ACT of New South Wales, and a submission

that section 46 was not a valid New South Wales law

and a submission whether section 7 did or did not cover

the matter, dealt with the matter solely by looking at

section 7. So that Their Honours left alone altogether

the "cover the field" question which had been debated

before them.

WILSON J: It would be a different argument, would it not, as

to whether there was a section 109 question touching

section 7, as compared with section 46?

MR RAYMENT:	We would submit not.
WILSON J:	Section 46 is much closer, if not within -on your

argument it would be within the field intended to be

covered by the CoIIllllonwealth Act.	Could you say that of
section 7?

MR RAYMENT:  Well, we would submit so and the way it was put

involves that proposition. The way it was put was

this, and it would be proposed to be put this way

before the High Court if special leave be granted, that

the field is workers compensation in respect of employment

covered by section 4 of the SEAMEN'S COMPENSATION ACT.

We have handed that up to Your Honours. The various

kinds of employment referred to in section 4:

(a) the employment of seamen on a ship

registered in Australia -

(i)  that is engaged in trade and coIIllllerce

with other countries or among the States,
or between a State or a Territory

forming part of the CoIIllllonwealth and a

Territory (whether forming part of the

CoIIllllonwe~lth or not); or

(ii)	a Territory -
that is within the territorial waters of

and -

(b) the employment, under articles of agreement entered into in Australia, of seamen on a ship not registered in Australia (whether

British or not) that is engaged in trade

and coIIllllerce among the States, or between
a State and a Territory -

et cetera. And then finally, "delivery voyage" is

referred to in (c).

We would respectfully submit that when a worker's

compensation claim arises in Australia with respect to

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employment like that, this Act covers the field and

that would involve that in all workers compensation

statutes in Australia, not only the New South Wales'

Act, any provision which would empower the award of

workers compensation in respect of those employment
would be inconsistent, we would submit, with the

federal legislation. That would cover section 7

as much as section 46. Although section 46, as

Your Honour says, is more specifically directed to

the matter, if the Court of Appeal is right and the

Act extends to enable an award of workers compensation

be made for a seaman in respect of the employment

mentioned in section 4, then the State law is

inoperative, in our respectful submission.

Now, Your Honours, we submit that the point is

of general public importance, that is to say, whether
the SEAMEN'S COMPENSATION ACT does or does not cover

the field. It affects every Australian State, and

it affects some 8000 seamen, as the affidavit shows.

We submit that the failure of the Court of Appeal to deal with the "cover the field" submission which,

we would submit necessarily fell to be disposed of,

puts the matter also within subsection (b) of section

WILSON J: Section 35A of the JUDICIARY ACT?

MR RAYMENT:	Of the JUDICIARY ACT.
WILSON J: Yes.	I appreciate the importance of the point

you make, Mr Rayment, but I cannot help asking

by the way , does the Cormnonwealth Act, in your

submission, cover the case of a seaman whose ship

happens to be registered in New South Wales which happens to be in port in Sydney and he suffers an

accident on the way home on leave or back to the ship?

MR RAYMENT:  Yes, there are journeying provisions in the

SEAMEN'S COMPENSATION ACT. Indeed, that is one of the

reasons why the inconsistency must be there. The

journeying provisions in the New South Wales WORKERS

COMPENSATION ACT are actually in different terms to
those in the SEAMEN'S COMPENSATION ACT.	And there were
decisions of this Court on the journeying provisions	in the SEAMEN'S COMPENSATION ACT which would be
inapplicable to the corresponding provisions of the
State Act. It is not only that matter though, of course,
there are different rates of compensation and there
have, traditionally, been different rates of compensation
over the years. They have not been the same. The
facts of the case throw up a difference in legislative
policy as to whether a worker in the category of the present respondent ought or ought not to have a right
to workers compensation. The position in New South
Wales used to be, as it still is in the Cormnonwealth,
that for boilermaker's deafness you needed to have
total incapacity before you had a claim. In 1951 that
was changed in New South Wales. The Cormnonwealth
provision is still the same. And, Your Honours, that

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is a good illustration of why it should be, in our

respectful submission, that this Act would cover the

field, but I do not want to seek to go into, to any

extent, those merits.

Your Honours, if Your Honours were minded to

receive the case we would wish to argue again the
application of section 7 to the particular facts of
the case and the question of whether section 46 is

a valid law under the law of New South Wales, assuming

that section 7 does not touch the case. And we

would submit that those are also - - -

WILSON J:  On what ground do you place the last-mentioned

submission?

:t:1R RAYMENT:  Your Honour, section 46 - and we have handed it

up

WILSON J:	On the peace, order and good government issue?
:t:1R RAYMENT:	Yes, Your Honour.

WILSON J: Not the MERCHANT SHIPPING ACT?

:t:1R RAYMENT: Well, I was not going to put forward that that was

a special leave point, whatever else it might be; It

could be cured by the re-enactment of the legislation

since the AUSTRALIA ACT has been passed.

WILSON J: And it might have been cured by the AUSTRALIA ACT.

:t:1R RAYMENT:  It may arguably have been. I was not going to

put that forward, Your Honour, as being a special leave

matter, whatever else it might be.

BRENNAN J: Should it be excluded from the grant of special

leave?

:t:1R RAYMENT: Well, if it were, I would not seek to be heard

in opposition to it, Your Honour.

WILSON J:	We can come to that later if necessary.
:t:1R RAYMENT:	Because it could be cured very quickly if the

Court were of the view that it was right. But,

Your Honours, the section 46 point is, in our submission,

the real one. The corresponding question was looked at

in Queensland by Mr Justice Hangar and His Honour came

to the view that the corresponding Queensland provision

was outside the competence of the Queensland legislature	..
For example, if valid, the statute would deal with the
workers compensation claims of a ~icaraguan employee
because the ship happened to have been owned in New	engaged in Mauritius to apply to South Africa just
South Wales, for example.

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WILSON J: But is there a difficulty there? Unless you

made good your attack on the application of section 7,

and assuming the section 109 point was not made out,

section 46 would fall by the wayside.

MR RAYMENT: That is precisely so. One needs to deal with

the section 7 point. Your Honours, the section 7 point

arose for the first time in the Court of Appeal within

a day or two beforehand. We were asked to agree, and

we did agree, to the tender of a certificate rather

than have the matter go back before a judge and bring	it back again - a certificate proving that the
employment finished on a certain day not long before
the claim for compensation was made. In no way do we
seek to resile from having done that. But we submitted
then and we would wish to submit now that that does
not bring the matter within section 7. That will, if
correct, throw up the section 43 point as well and
it would be, in our respectful submission, useful to have this Court look at the section 46 point as well as it would arise in other cases.

BRENNAN J:  Am I right in thinking the 46 point will arise

only if the section 109 point is resolved against you?

MR RAYMENT:  And then only if the section 7 point is resolved

in my favour.

WILSON J: Well, it is the third down the line.

MR RAYMENT: It is, really, yes.

WILSON J: Well, I think we might hear what Mr Shaw has to say,

Mr Rayment.

MR SHAW:  If the Court pleases. We oppose the grant of special

leave, Your Honours. We say that the statutory question,

that is section 7 versus section 46, is not an

appropriate matter for special leave. That point was

determined unanimously in our favour by the Court of

Appeal and we rely upon the reasoning of Mr Justice Samuels

at pages 16 and 17 of the application book. His Honour

thought the matter was plain that section 7 was sufficient to comprehend this case and to comprehend seafarers. In large part, the reasoning of the Court of Appeal on that

point follows an earlier 1980 judgment of the Court of

Appeal in WEIR which was also a unanimous judgment of

that court. The court thus, in 1980 and 1987, has

unanimously held that section 7, the general
provision of the WORKERS COMPENSATION ACT, is sufficient

to comprehend a case involving seamen and we submit

that the point - - -

WILSON J:  In what circumstances? How far does it go,

Mr Shaw? Involving seamen who suffer injury where?

MR SHAW:  Certainly relevantly where the seaman ends his

service in the jurisdiction in Sydney as is the present

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case, that is section 7(4B)(b)(ii) of the WORKERS

COMPENSATION ACT, that is:

where ..... on the last day on which he

was employed -

the injury is deemed to have happened at that location.

So, it was that section that Mr Justice Samuels

particularly referred to, or that subsection, in this

case. And we say, Your Honours, that that point is

one of interpretation of the New South Wales legislative

provisions in relation to which there is a unanimous

view within the intermediate court in those two

judgments that section 7 is sufficient width to
apply to seafarers. Really, there is nothing that casts

sufficient doubt on that point of statutory construction

to warrant the grant of special leave. So, we submit,

leave would not be granted on that issue.

As to the section-109 point, one must concede,

Your Honours, that is a point of more significance

and does raise, of course, a general argument about the

validity of State workers compensation provisions in the

light of the 1911 Commonwealth Act. We would say,

essentially, two things in opposition to special leave on that point: one is that the challenge in the Court

of Appeal, under section 109, was a challenge directed to section 46 and that that is the only constitutional issue which was before that court, the court holding

that it did not need to resolve it because section 7 was

applicable.

WILSON J:  That may have arisen in that way by reason of

section 7 coming in at the last minute.

MR SHAW:  I readily concede that section 7 was raised late; in

fact, both parties raised significant questions which

had not been debated at first instance.	I acknowledge
that, Your Honour.	But, certainly, the Court of

Appeal thought that the only constitutional issue before

it was that directed to an attack on section 46. That

appears at page 15 of the application book in the

judgment of Mr Justice Samuels where, in the final

paragraph on that page, His Honour said:

Consequently, both before the learned

judge and in this Court, constitutional

arguments were developed arising out of

the suggested conflict betweens 46(1) of
the State Act and the provisions of the

Commonwealth Act, the appellant placing reliance upon s 109 of the Commonwealth

CONSTITUTION.

Now, Your Honours, in our submission, the

constitutional attack upon section 46 would be a

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qualitatively different constitutional argument from
that directed to section 7. No doubt there would be areas of overlap but sec~ion 46 is plainly a section directed to compensating seamen, whereas section 7 of

the Act is the general and substantive compensatory

provision of the WORKERS COMPENSATION ACT. I would concede

that one can have a constitutional attack on section 7

based upon the 1911 Commonwealth statute but it is a

different argument, a different attack, from that which

was directed in the Court of Appeal to section 46.

So we would respectfully defend the approach taken

in the Court of Appeal, namely, that all it had to

decide was that the case fell within section 7 and

that it could then put aside the other constitutional

arguments which were directed to the court.

The second area of argument we would like to

address on this point, Your Honours, is to say that, in

our submission, the attack upon section 7, based upon the

SEAMEN'S COMPENSATION ACT is insufficiently arguable to

warrant the grant of special leave. We say that

principally because in the SEAMEN'S COMPENSATION ACT

itself the legislature evinces an intention not to cover
the field, that is to say, to allow State laws or

other laws to operate.

WILSON J: It does not refer to State laws, does it?

MR SHAW:  Not in terms - - -

WILSON J: You have to credit the State with being another

part of Her Majesty's dominions.

MR SHAW: That is precisely so, Your Honour.

WILSON J: Which is a little bit odd at first sight.

MR SHAW: Perhaps a little bit archaic in terms of language

and so on, Your Honour. But I see that Your Honours

are aliv~ to these points. Could we just mention the

sections of the Act which we say show that the

Commonwealth legislature has contemplated that State

proceedings might occur in respect of seamen who could

also conceivablv claim under the federal Act. Section 5

of the 1911 Act creates the liability to pay compensation

and then has a number of provisos. We refer to

proviso - in subsection (2)(d) which provides:

in the case of the death of a seaman

leaving no dependants, no compensation

shall be payable under this Act if the

owner of the ship is under any Act,

Imperial Act, or State Act liable to pay the expenses of burial:

(e) if it appears that the claimant has
a claim for compensation for the injury

under any law of the United Kingdom or

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of any other part of the King's Dominions

or of any foreign country, compensation

under this Act shall only be allowed upon

the claimant undertaking not to claim

compensation for the injury under any

such law.

So, as Your Honour the presiding Judge says, if the
law of New South Wales is regarded as another part of

the King's dominions then the Commonwealth Act is saying,

"Well, one could have a claim under that law but you

can't double count".

WILSON J: Yes, that would be fairly clear then, I should think.

MR SHAW:  And the other section to which we make reference is

section l0A(l) which provides as follows:

Except as provided by this Act, a seaman

shall not be entitl~d, in respect of

personal injury by accident arising out
of or in the course of his employment,

to receive compensation or any payment

by way of compensation from the employer

both independently of and also under

this Act.

Your Honours, in the case of JOYCE V

AUSTRALASIAN UNITED STEAM NAVIGATION CO LTD in this

Court, the Court seemed to take the view that

State compensation Acts could be applicable to persons who might otherwise be comprehended by the 1911 federal

Act. Could we hand up three copies of that judgment in 62 CLR 160?

WILSON J: Yes.

MR SHAW: There the argument, Your Honours, was that although

the Commonwealth Act might be dealing with State workers

compensation Acts it did not deal with a common law

action for damages but the Court held ~hat the Commonwealth

Act comprehended both the possibility of State workers

compensation actions and common law actions for damages. Could I just refer to one passage at page 166 in the judgment of Sir John Latham where His Honour was dealing

with the word "compensation" at the top of the page.

His Honour said:

I can see no reason for limiting the

meaning of the term in a Federal statute.

The word is wide enough in its ordinary

significance to include compensation

by way of damages for the injury suffered

by the seaman, whether or not some default

by the employer is part of the seaman's

cause of action.

And then there is reference to the 1911 Act:

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"but subject to this paragraph this Act shall not affect any civil liability of

an employer under any other law." This

provision is a general provision as to the liability of an employer shall not be
civil liability of an employer in respect
of an injury for which a workman may be
entitled to compensation under the Act.

affected is subject to the qualification

that a seaman shall not be entitled to

recover compensation both independently

and also under the Act. Upon the natural

construction of the provision this

qualification is intended to operate within

the area of other civil liability and it,

therefore, should be interpreted as

applying to all such liability and

therefore to common law claims for

damages as well as to claims under a

State workers compensation Act.

I just refer in passing, Your Honours, also to what

Mr Justice Evatt said at page 175 point 5 where

His Honour saw the SEAMEN'S COMPENSATION ACT, we would

respectfully suggest, as one of the choices that the

injured worker would have and that the various provisions

were, as His Honour put it, designed to prevent

the employer·"from being twice vexed by claims in respect
to the same injury". So, the Court contemplated the
possibility of choice or election on the part of the

applicant worker.

WILSON J~- Section 5 has been amended since JOYCE's case, has

it?

MR SHAW: That is true, Your Honour. One does not find those

exact words in the Act but, in our submission, the

effect has not been altered and the policy remains

constant.

The only other point we desire to say in terms

of the arguability of this constitutional attack is

to refer the Court generally to what His Honour

Judge Freeman said at first instance beginning at

page 5 of the application book and to simply put
generally that His Honour, with respect, makes out a
persuasive case based in large part upon the sections

to which I have referred that there is no inconsistency

between the SEAMEN'S COMPENSATION ACT and the WORKERS

COMPENSATION ACT generally. We submit that the State

laws can ~coexist with the Commonwealth law in this

respect.

Your Honours, as to the question of importance,

we submit that at least for 60 years the provisions,

such as section 46 of the WORKERS COMPENSATION ACT, have

coexisted with the 1911 Commonwealth legislation and

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this constitutional point is not required to be

decided. Secondly - this is very much just a point in

passing - - -

WILSON J:	I suppose that would be because the two decisions of the Workers Compensation Connnission had determined
it, had they?
MR SHAW:	That may be so, Your Honour, although Judge Freeman

deals with those various decisions at the bottom of

page 10, going over to page 11, showing,

we would respectfully suggest, that none of them really

represent authoritative findings on the matter, they

are all rather confined in what they do decide and

His Honour, at the top of page 11, draws attention to

the fact that the real issue was never decided in the

case to which my learned friend has specifically referred,

the 1933 case. The constitutional issue was not really

decided, it was just assumed that because interstate

trade was there then the State court could not deal with

the matter.

Your Honours, nothing greatly turns on it but I

should just note that the WORKERS COMPENSATION ACT 1926

has been repealed in New South Wales. I say nothing

greatly turns on it because in substance the relevant

provisions here have been re-enacted in the 1987 Act

although the statutory scheme, as a whole, is somewhat

different.

WILSON J: When was it re-enacted?

MR SHAW: In 1987.

WILSON J: After the AUSTRALIA ACT?

MR SHAW:  Yes.

WILSON J: So, that really kills stone dead the MERCHANT

SHIPPING ACT point?

MR SHAW: Yes, certainly in terms of a practical issue, yes,

Your Honour.

I should also just note on this question of

importance that as presently pleaded - and the

application is not before the Court, but as presently

pleaded, the claim in this case is worth a total of

$1834, being amounts in respect of the two ears - the

loss of hearing based on the table of maims

and thus it is a very modest case in terms of my

client's individual interest.

Your Honours, if the Court, contrary to our

submissions, is minded to grant special leave, then we

submit, first of all, that leave should only be granted

as to the section 109 point, not in relation to the

construction of section 7. If leave were not granted

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in relation to the applicability of section 7 of

the Act, then the question of the territorial validity

or constitutional validity of section 46, in our

submission, becomes irrelevant as is really conceded

in the affidavit supporting this motion. If the

applicant for special leave loses on the WEIR's case

point, the section 7 point, then it becomes academic

to attack section 46. So, in our submission, leave

would be confined, if leave is given, to the section 109

point.

BRENNAN J: Can you confine a section 109 point so

as to exclude any question of construction of the Act

which is said to be inconsistent?

MR SHAW:  No, I think one cannot, Your Honour.

WILSON J: And validity of the Act which is under consideration

perhaps.

MR SHAW:  We would submit there is a separate question turning

on considerations of State constitutional law: is

this section a section for the peace, good government

of New South Wales and so on? Now, if this claim can

be brought under section 7 then that point, in relation
to section 46, does not arise. There is no doubt, of

course, about the validity of section 7 or no doubt

has ever been expressed about that, and we say we are

clearly right that the case falls within section 7.

We do not have to rely on section 46.

WILSON J:  But in order to deal with the 109 point

it really brings the Court to construing section 7,

then the applicant is entitled to have, assuming

leave were granted at all, section 46 left in because

that would be the alternative ground on which he would

seek to recover.

MR SHAW:  I accept that. If Your Honours were giving leave

on what I call the statutory construction point, the

point that really found favour with the Court of

Appeal, I can see the force of that, with respect,

Your Honour.

The only other thing I desire to say, Your Honours,

is this:  I have pointed to the modesty of the claim.

It seems that the employer applicant for special leave

regards this as something of a test case. We would

suggest that this might be a case, if Your Honours were

minded to grant special leave, where the applicant for

special leave should pay the respondent's costs in any

event both because, as we have said, it appears to be

something of a test case for the applicant for special

leave and because of the nature of our claim which is

very confined in its quantum.	If the Court pleases,
those are our submissions.

MR WILSON:	Thank you, Mr Shaw.	Mr Margo, do you wish to - - -?
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MR MARGO:	Your Honours, the Attorney does not wish to make any submissions on the merits of the application but
there are two points arising in relation to it that I
would like to make submissions on.

WILSON J: Well, you had better come to the rostrum.

MR MARGO:  Your Honours, the first is a submission that the

Attorney ought to have been named as a respondent to

this application as being a party to the proceedings
in the court below. Although it does not appear
from the supporting affidavit, the Attorney intervened
first in the compensation court following receipt of a

notice under the JUDICIARY ACT and was subsequently

party to the proceedings in that court and in the

Court of Appeal and it is my submission that in

those circumstances he is a respondent within the

meaning of Order 69A and ought to have been served

with the papers. The only papers the Attorney did

receive: we did get copies of the application books

but as a courtesy only. And the second submission -

WILSON J: There are certain risks associated with being

joined as a party.

MR MARGO:  As to costs, Your Honour?

WILSON J: Yes.

MR MARGO:  Well, we are at that risk under section 78(2).

I think we run that risk anyway.

WILSON J:	Yes.	The measure of the risk may differ.
MR MARGO:	Yes.	It has been held in the Court of Appeal

in the case of BRADLEY V CORPORATE AFFAIRS COMMISSION

I will not trouble Your Honours with it unless you wish

to see it - that once a party has intervened - an

intervening party is a party for ~11 purposes, once

he has intervened, whether as a right or by leave.

That was not a case on section 78A.

The second submission, Your Honours, is related.

If special leave were granted, the Attorney would wish to be a party and to be named in the notice of appeal.

WILSON J:	I beg your pardon, Mr Margo, that last comment?
MR MARGO:	The second point arises out of the first really,

Your Honours. We are not named in the draft

notice of appeal and if special leave were granted

we would want to be a party to the appeal. The point

is not merely - it is not really an idle point,

Your Honours, we wish, obviously, to be heard on any

argument not only in relation to the federal

constitutional point but validity of the State

law which may arise on the appeal.

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WILSON J:  Yes. I would not think there would be any doubt

about you being heard. It is just a question of

the propriety, in the circumstances, of joining him.

MR MARGO:  Yes. I should also mention to Your Honours the

decision of this Court in REG V LUDEKE, 155 CLR 513. I think

Your Honour Mr Justice Brennan was on that bench, and

that did concern a statutory right to grant leave to

intervene which is vested in the Arbitration Connnission
and there was a discretionary right to grant leave to

intervene. But there were some statements by

Your Honour Justice Brennan and Justice Mason about the

restricted bases for intervention. I think Mr Justice

Mason's attention was directed, really, to the position

of connnon law and His Honour's view was that there was

no leave to intervene except by statute. And, of course,

the argument could be put against us that if we

intervene under 78A our argument should be confined

to the federal constitutional point.

WILSON J: Yes.

BRENNAN J: The question, I suppose, is whether you are a

party in the court below and I wonder what relief was

sought by or against you?

MR MARGO:  I do not think we were a party on that basis,

Your Honour. At connnon law, we couldnot be a party

unless some relief was sought by or against us.	But
certainly in equity there are cases where a party

having - against 'Whom no remedy is sought and seeks no

remedy but whose interests would be directly affected

by the decision of the court, has been joined.

BRENNAN J: Are you in that situation?

MR MARGO:  We would submit, yes, Your Honour, confining my

submission to the validity of the State law point

because we have a right to intervene on the other

point. It is a matter touching the prerogative of

the Crown,that the Act is held to be beyond power, and it

is the Attorney's function to uphold that rule.

BRENNAN J: Yes.

MR MARGO:  Would Your Honours want copies of the two cases

I referred to?

WILSON J:	I do not think so, Mr Margo.
BRENNAN J:	I must say I do not know what the procedure is

when an appeal is sought to be brought against one only

of two parties; whether the other party has a right to

claim to be joined?

MR MARGO: Perhaps I should take Your Honours to Order 69A,

or it is probably fresh in Your Honours' minds, seeing

it regularly, but the requirement is that service be

affected on any person who was a party to the proceedings

below. That raises the question Your Honour just put to me.

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In accordance with State law, that is BRADLEY's case,

once we had intervened we were a party.

BRENNAN J: Yes, the problem - let it be assumed that you are

a party; let it be assumed that you have not been

served and there is an irregularity for failure to

serve you, what is the remedy?	What order does the
Court make?

MR MARGO:  That we be now joined to this application and if

leave is granted, as a party to the appeal.

WILSON J:  I guess if the proceedings went on without you

there could be an action in damages for negligence.

MR MARGO: Well, Your Honour, that raises also - it is a side

issue. I appreciate Your Honours have other business

to complete today but the question of whether successive

notices under section 78A need to be given at each

stage of proceedings. We have only received one

notice and that was when the proceedings were before

of the proceedings, further notices are not served

the compensation court and as a matter of practice,

although there may be further communication.

WILSON J:  If leave were to be granted, my understanding would

be that a fresh notice would go to the Attorneys

pursuant to 78B, was it?

MR MARGO: Section 78A it is, Your Honour.

WILSON J: It is A, is it? I thought it was B.

MR MARGO:  Sorry, 78A is the right to intervene and 78B is

the

WILSON J: Section 78B is the notice, yes. Well, I think that

is the answer to that.	Have you any other interesting
points of procedure?

MR MARGO:	No, Your Honour.
WILSON:J:	I will consult with the parties before we make a

decision on the joinder. Mr Shaw?

MR SHAW:	We have no submissions on that point, Your Honour.
WILSON J:	Having no submissions, you neither object nor assent,

I take it?

MR SHAW: That is so, Your Honours.

MR MARGO:  I should have mentioned to Your Honours: Your Honours

could also, if there were doubts, join us as a party for

purposes of the State constitutional point under the

joinder rule. I think that is Order 16 rule 4.

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WILSON J:  Mr Rayment, would you reply generally and include

in your reply corrnnent on Mr Margo's points?

MR RAYMENT:  Thank you, Your Honour. May I start then with

section 7.	My learned friend asked for that to be
excluded.	We would ask Your Honours not to exclude
any part of this.	I do not know that it took very long,
at first instance,	this case,nor would it necessarily

take very long as to sections 7 and 43.

Your Honours, section 7, if it applies so as to

enable this claim to be brought, has a difficulty because

it provides for rights to contribution from other

employers who were earlier employers. Now, that remedy

would be inefficacious if section 7 applies to many

typical interstate and overseas provisions that would

arise under the - situtions that would arise under the

SEAMEN'S COMPENSATION ACT. In other words, it would be

beyond power of the New South Wales Parliament to make

overseas employers and the like liable to pay contribution.

The price of making the last employer in the line

responsible for a disease of gradual onset is that he

will have a right over to claim contribution against

others and if the one does not occur as a matter of

statutory construction, we would want to say that the

T8	other does not occur.
Your Honours, the other thing: there is a very small point about the facts. We would want to say they
have not brought themselves within section 7, as a matter
of fact. If that be right, then the section 46 point
would directly arise for consideration here. I can show
Your Honours how that arises if Your Honours wish.

WILSON J:  Mr Rayment, the Court does not wish to hear you

any more on the merits of the application for special leave but we would like to hear you on what we should

do with the Attorney.

MR RAYMENT:  May it please Your Honour. Page 12 of the appeal

book shows him as an intervener and if one looks at the

title to the proceedings, that seems to be what he is

in that he has not been named as a party anywhere.	He
was there, at first instance, we accept, and he was
there again in the Court of Appeal, but in each case,
in our submission, he was there as an intervener.

WILSON J:  Why was he not served in the terms of the rule?

69A requires - well, I suppose you would say he was not

a party in the proceedings below.

MR RAYMENT:  He was not a party, Your Honour, and he was not a

party a~ywhere, in our submission. If he were a party

he would have, for example, some right to claim costs

in the event the appeal does not succeed and we would

seek to resist that situation although we might have a

benefit, perhaps, if he were unsuccessful, we might not otherwise have, subject to the discretion of th~ Court.

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Your Honours, I have not really come prepared to

argue whether BRADLEY's case be right or wrong or

applicable but, in our respectful submission, the normal

position under section 78B is that one does not have a
party who comes along to court, one has an intervener

and the position would be governed not by any common law

rule but by the position of the federal law in relation

to section 78B. If an application were made by the

Attorney to be heard on the State questions, I apprehend

it would not be - although we may be heard on it, it

would not be a matter on which the Court might be very

influenced by what we said about the matter, with respect.

BRENNAN J: What do you say about paying the costs in any

event, Mr Rayment?

MR RAYMENT:  Your Honour, we do not seek to oppose that in relation, solely, to the two parties.

WILSON J: Thank you.

The Court will grant special leave to appeal in

this matter with the exclusion from the grounds set

out in the draft notice of appeal of paragraph 5, that

is the question that raises the MERCHANT SHIPPING ACT question. The leave will extend to paragraphs 1 to 4 of the draft notice of appeal. It will be conditioned

on the applicant paying the costs of the respondent in any event. With respect to Mr Margo's point, we think it preferable not to make any order this afternoon

beyond those that were sought on the papers and that

we leave Mr Margo's client, the Attorney-General for

New South Wales, to proceed to intervene as a matter

of right on the constitutional question and to seek
leave to be heard on the question of the constitutionality

of the State Act at the hearing.

We apprehend that section 78B of the JUDICIARY ACT

springs back into force and will require the appellant

to notify the Attorneys and, if they seek the papers,
to supply them with the papers for the appeal.	I think
that deals with the matter, thank you.

MR RAYMENT: If Your Honour pleases.

AT 2.43 PM THE MATTER WAS ADJOURNED SINE DIE

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