Vic WorkCover Authority & Anor v Esso Australia

[2000] HCATrans 407

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M47 of 2000

B e t w e e n -

VICTORIAN WORKCOVER AUTHORITY

First Applicant

FAI WORKER’S COMPENSATION (VIC) PTY LTD

Second Applicant

and

ESSO AUSTRALIA LIMITED

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 8 SEPTEMBER 2000, AT 2.36 PM

Copyright in the High Court of Australia

MR J. RUSKIN, QC:   May it please the Court, I appear with MR M.F. WHEELAHAN, for the applicants.  (instructed by Wisewoulds)

MR G.A. LEWIS:   If the Court pleases, I appear for the respondent.  (instructed by Middletons Moore & Bevins)

GUMMOW J:   We would be assisted, Mr Lewis, on hearing first from the respondent.  Let me put this to you:  if you go to page 44 of the application book, the relevant section, 138 is set out.  It is headed “Indemnity by third party”, and then subsection (3) tells one how to compute the amount which the third party is required to pay.  The relevant section in the Supreme Court Act talks about “proceeding for recovery of debt or damages”.  There is a line of authority which starts, I think, with a decision of Barron Parke in Shepherd v Hills in 1855, which is recently applied by this Court in a Customs case in The Commonwealth v SCI Operations 192 CLR 313, which indicates this, that when one has a statute that creates an obligation to pay a liquidated sum, as this does, but the statute itself does not provide a particular form of action for the recovery, then the form of recovery was in debt, common law. That is the way the common law worked, and 138 is such a section and those enacting the Supreme Court Act, section 60(1), when they spoke of “proceeding for recovery of debt or damages”, did so against the background of a principle which had been started off, at least by Barron Parke in 1855.

That lengthy recitation is the problem that immediately presents itself for you.

MR LEWIS:   Those appearing for the applicant, if your Honour pleases, have in their application material, taken the view that the right which their client enforced was that of a statutory indemnity rather than an action in debt.

GUMMOW J:   No, what I am saying to you is under the common law pleading system, you would bring an action in debt.  The fact that it arose from the statute would not matter.  The idea of a debt in a common law action encompassed it, and that therefore, when you come to the Supreme Court Act, it is against that background.

MR LEWIS:   Yes, I follow that, your Honour. 

GUMMOW J:   It may be right and it may be wrong, but it seems to be a point.

MR LEWIS:   It is the nature of the statutory obligation that must be classified, if your Honour pleases.  There is authority that this particular form of statutory obligation is not that of a debt, but a statutory indemnity and that there is a line of authority in this State, of course, that has been ‑ ‑ ‑

GUMMOW J:   I understand that.

MR LEWIS:   It has been referred to most recently by Mr Justice Gobbo, of course ‑ ‑ ‑

GUMMOW J:   I understand all of that.  That would have been an answer in Shepherd v Hills.

MR LEWIS:   The way it is put, if your Honour pleases, is that the statutory indemnity itself does not carry the characteristic of a debt that is earmarked ‑ ‑ ‑

GUMMOW J:   What worries me, frankly, is that – when was this case decided in the Court of Appeal?

MR LEWIS:   This year.

GUMMOW J:   No one seems to have drawn the Court’s attention to SCI.

MR LEWIS:   No, that is so, your Honour, it was not debated on that basis.  It was debated on the basis that the phrase “debt or damages” in the Supreme Court Act did encompass a statutory indemnity of this nature.  Indeed, those appearing for the applicant can see that the nature of the proper classification of the recovery is a statutory indemnity and not a debt.  That is the way they phrased their application material.

GUMMOW J:   A debt within the meaning of section 60, that is the question.  They are comprehensive words, and the reason why they are comprehensive is that the draftsman understood all that had gone before.

MR LEWIS:   The way it was understood in the Court of Appeal, your Honour, is that the phrase “debt or damages” encompassed a claim for statutory indemnity of this nature.

HAYNE J:   Assume for the purposes of argument, Mr Lewis, that this point has never hitherto been mentioned in the course of debate, which is what I understand you to be saying.

MR LEWIS:   That is so, your Honour.

HAYNE J:   The immediate question is then, so what?  If the Court of Appeal is wrong, and wrong because its attention was not drawn to this line of authority, two questions arise:  can it be corrected, given the course of proceedings below?  Should it be corrected?

MR LEWIS:   We say it ought not to be corrected.  It should not be corrected, your Honour.  It is not a matter of sufficient significance to grant special leave, be that as it may. 

GUMMOW J:   But it seems to have a great deal of day-to-day importance, does it not, in Victoria?

MR LEWIS:   Well, it does, your Honour, but I might address that point in this fashion:  that the Victorian Parliament itself seems to have had a great deal of diffidence and no doubt did not have your Honours’ legal acumen, in the way ‑ ‑ ‑

GUMMOW J:   It is not just my acumen, it is the requirement people read the Commonwealth Law Reports.

MR LEWIS:   Thank you, your Honour.  In the way it is drawn in the Act itself.  For example, in various provisions in the Accident Compensation Act, the Parliament has given to the authority the power to reclaim money off parties other than those immediately contemplated by the Act.  In doing so, in exercising those statutory rights, the Parliament has attached to them the power to claim prescribed interest under the Act.  For example, a self‑insurer who fails to meet its obligations under the Act, the authority steps into its shoes and makes those payments.  It then has a statutory right to reclaim them with prescribed interest.  There are a number of such examples in the Act, which leads one to perhaps wonder if the Victorian Parliament itself felt that the statutory rights it was creating in the Accident Compensation Act did not come within section 60.

There are other examples I can take the Court to indicating the state of mind that may have prevailed in the Parliament at the time of the enactment of this legislation.  That, for example, might include where a contributor to an injury prior to 1985 is called upon by the authority to contribute to the payments made after that date by the authority.  That contribution demand carries with it, by statute, under the Accident Compensation Act, a claim for interest at the prescribed rate.

HAYNE J:   That is a separate prescription, what, by regulation made under the WorkCover Act?

MR LEWIS:   Under that Act.  A third example:  if payments are made by the authority under the inducement of conduct later branded as criminal, then the recovery amount that is given to the authority, again by statute, carries with it interest at the prescribed rate.  The Accident Compensation Act itself contains a number of such examples where the Parliament of this State has not felt that the giving of a right – and a right very similar in its nature to the right we are considering under section 138.  The analogy, for example, between that provision and the right of the authority to recover money from a self-insurer is a statutory ‑ ‑ ‑

GUMMOW J:   This is really a question of construction of the Act by reference to the context provided by the provisions.  Did the Court of Appeal deal with that particular approach that you are now putting?

MR LEWIS:   No, I think the President did advert to the fact that the Accident Compensation Act itself made provisions for the recovery of interest by the authority without going into that in any detail.

GUMMOW J:   But it is really an expressio unius type argument.

MR LEWIS:   I think so, your Honour.

GUMMOW J:   Was that identified?

MR LEWIS:   I thought at the conclusion of the judgment of the President of the Court of Appeal there had been some reference to that matter.  It certainly was not discussed at length.

GUMMOW J:   Was it argued, can you recall?

MR LEWIS:   I am not sure that it was, your Honour.  Although I was at that level of this trial, I cannot remember that it was argued.  It may have been, but I cannot say most certainly that it was.  What is the state of the law as adverted to by your Honour is taken to be ‑ ‑ ‑

GUMMOW J:   You say this would be an answer to it.

MR LEWIS:   The answer to it is that the Parliament itself in addressing very similar rights to that under consideration by this Court, has felt sufficiently diffident about section 60 in order that it has enacted a prescribed rate of interest to the rights flowing under the Accident Compensation Act.  It has done so, we say, because of the state of the law as it is known to be in this State, reflected by the judgment most recently of Mr Justice Gobbo, and reflected by the form in which the application summary of argument takes in the present case.

GUMMOW J:   Yes, thank you, Mr Lewis.  What you have just been putting, I think, Mr Lewis, if leave were granted, would have to be reflected through a notice of contention.

MR LEWIS:   Yes.

GUMMOW J:   If we were minded to grant leave, it would look to us like a half day appeal.  Does both sides agree with that, roughly?

MR LEWIS:   Yes.

GUMMOW J:   Yes, well, there will be a grant of leave in this matter.

The Court will now adjourn until 2 pm on Tuesday next, 12 September, in Sydney.

AT 2.48 PM THE MATTER WAS CONCLUDED