Workcover Corporation of SA v Spyridak

[1998] HCATrans 71

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A37 of 1997

B e t w e e n -

WORKCOVER CORPORATION OF SOUTH AUSTRALIA

Applicant

and

H. SPYRIDAKOS

Respondent

Application for special leave to appeal

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON THURSDAY, 12 MARCH 1998, AT 2.16 PM

Copyright in the High Court of Australia

MR G.A. HACKETT-JONES, QC:   May it please the Court, I appear with my learned friend, MR K.F. GILCHRIST, for the applicant.  (instructed by Thomson Playford)

MR A.S. MARTIN:   If it please the Court, I appear for the respondent.  (instructed by Johnston Withers)

HAYNE J:   Yes, Mr Hackett-Jones.

MR HACKETT-JONES:   The case, if your Honour pleases, involves important questions about the interaction of workers’ compensation schemes in cases involving some extraterritorial element.  The decision of the South Australian Full Court in this matter is, as far as I am aware, the first case in which the principle enunciated by this Court in Helmers v Coppins has been used to deny the compensability of an injury suffered by a worker whose place of employment was indisputably New South Wales.

HAYNE J:   Helmers v Coppins has stood now for well over 30 years, has it not?

MR HACKETT‑JONES:   It has, your Honour, but I think this is the first ‑ ‑ ‑

HAYNE J:   It has been the basis of the allocation of risk between the various workers’ compensation schemes throughout the country.

MR HACKETT‑JONES:   It has been generally adopted as a criterion of the applicability of those schemes, yes.

HAYNE J:   Why should we reconsider it?

MR HACKETT‑JONES:   Because it produces results that are, we would respectfully submit, palpably absurd and this is the first case that I am aware of in which the principle has been applied to deny compensation to a worker whose place of employment is indisputably New South Wales.

CALLINAN J:   Mr Hackett‑Jones, do you not need to persuade us that there has been a misapplication of section 6 of the South Australian Act?  Is that part of your appeal, assuming you were given leave?

MR HACKETT‑JONES:   Yes, that is so.  The misapplication occurs really through the  ‑ ‑ ‑

CALLINAN J:   Let me ask you another question.  Has not that section since been amended, that is since your case was decided?

MR HACKETT‑JONES:   That is so, your Honour, but the same  ‑ ‑ ‑

CALLINAN J:   The amendment would deal with the sorts of matters that you would wish to raise.

MR HACKETT‑JONES:   Not really, because the question is about the territorial ambit of the two schemes and that question will arise and be relevant  ‑ ‑ ‑

CALLINAN J:   Does not the new section make a great deal more explicit the considerations to which the Court should advert in deciding questions of extraterritoriality?  Is not that right?

MR HACKETT‑JONES:   That is so, your Honour, but the question is still relevant to the extent that if an injury is covered by both schemes as could perhaps arise.  My learned junior points out the current provision still requires you to consider whether the corresponding law applies but it seems to me, your Honour, that the question is wider because supposing both schemes apply.  Suppose that the New South Wales law is applicable to the case of Mr Spyridakos who is killed on his way home from employment in New South Wales.  That may, perhaps, mean that both schemes apply but, in any event, the question needs to be resolved so that the South Australian Parliament knows what the position of such a worker is.

On the view that had been put forward by the Full Court, of course Mr Spyridakos is not entitled to compensation under the New South Wales Act.  We respectfully differ on that point.  So, we would say that, irrespective of that issue of the interaction of the two schemes, the territorial reach of the New South Wales scheme is a matter of substantial importance to the South Australian authorities.  If we were to look, I respectfully submit, at the decision in Helmers v Coppins, with the hypothetical officious bystander in mind, if the hypothetical officious bystander had said to the court in Helmers v Coppins - had tapped them on the shoulder and said, “Well, do you realise that this means that a person whose employment bears no relation to New South Wales will be covered by the New South Wales Act, whereas another person who has been employed in New South Wales for 30 years may be denied compensation under the Act because his contract of employment did not happen to be made in New South Wales”.

We would say, with great respect, that that is a preposterous result and it can be approached in one of two ways:  either by reconsidering the authority and perhaps remoulding it more appropriately to contemporary needs or it may be that the ancillary rules, the rules about the place of contractual formation, need to be reconsidered and reformulated in a more satisfactory way.  In my notes I have set out certain examples which I think I perhaps do not reiterate but which show, I would respectfully submit, the absurd results that flow from the strict application of the Helmers v Coppins principle, at any rate, as interpreted by the Full Court.

On this latter question of the interpretation by the Full Court, I respectfully raise the question in my second head of argument as to whether that argument is correct; in other words, whether the construction of the word “employs” as relating only to the formation of the contractual obligation is strictly correct.  We would respectfully suggest that that construction, although it may appear to be vindicated by what Chief Justice Gleeson said in Starr v Douglass - of course, that was a very different case.  That was a case where a Northern Territory employee was trying to get the benefit of the New South Wales Act, so it was really a case that proceeded in the opposite direction to the one that we are currently considering.

So, whether his words should be literally taken to be a statement of what Helmers v Coppins in fact decides is, we would respectfully submit, a question that should be considered by this Court.  In particular, we would say that this interpretation of the word “employs” as denoting only a contractual engagement gives, perhaps, insufficient effect to the way the English language is able to reflect a number of different modalities simultaneously. 

Perhaps an example might be if you said, for example, “I have a ticket in the lottery, but the dog has eaten it.”  In that case, the ticket is being used in two modalities.  On the one hand it is being used as a physical object; on the other it is being used in a symbolic sense to symbolise the right of participation that the person has.  And in the same way, the word “employs”, we would respectfully submit, might, at any rate, be construed as being capable of interpretation in these two modalities.  But, on the one hand, it refers to an employer with a place of employment in New South Wales who employs the worker in the sense of provides the worker with physical tasks to do.  In another sense, it could be construed, as the High Court in fact construed it, as meaning that a contractual engagement satisfies the provision.  We would respectfully say that the Full Court did not allow that possibility into its consideration, and it should have done so.

So, if your Honours please, that is the second line of argument that we desire to advance.  The third line of argument concerns the locus of contractual formation.  In this respect Mr Justice Olsson, in particular, purports to draw an inference that the locus of contractual formation was Loxton in South Australia.  In the course of his argument he speaks somewhat critically of an argument that I advanced to him, although, with great respect, I do not think he understood it.  The argument that I advanced was that given the general informality with which the Black Diamond Charcoal business carried on its affairs, and given the fact that Mr Spyridakos and the Stassinopouloses were old family friends, it would be surprising if the contract, even if there were some sort of engagement at Loxton it would be surprising if that had contractual effect before Mr Spyridakos actually engaged in work at Belvedere. 

So, in other words, if Mr Spyridakos had got to Belvedere and had said, “Well, I really do not fancy the work, I do not think I will do it,” the question might arise, would Black Diamond have an action against him for breach of contract?  We would say probably not at that stage given those circumstances.  So my argument to - - -

HAYNE J:   Is that point which you seek to agitate any more than a point of fact?  What general principle does it raise, this third way of putting your case?

MR HACKETT-JONES:   I suppose what I am suggesting to your Honour is that there are many possibilities about it that were not explored by the court, which may explain how a contract came to exist between Mr Spyridakos and the Black Diamond Charcoal Company.  The Full Court has erred in assuming, through, we would respectfully suggest, a defect of judicial imagination, that there could only be one way that this contract arose, and that was through Mr Tom Stassinopoulos as agent for Black Diamond Charcoal making the contract at Loxton with Mr Spyridakos.  We say that is simply not so, that the facts are susceptible of many different possibilities and many different interpretations, and it is in that state of uncertainty that we would suggest that this Court should propound an appropriate principle for resolving what is the locus of contractual formation in a case like the present.

I am not suggesting to your Honour that your Honour should in any way endorse that theory as a theory of contractual formation.  I merely say that it was put to the Full Court and it does not appear to have been understood by then in that way.  I think Mr Justice Olsson understood that argument as meaning that I was somehow or other suggesting that the offer was not made, or Mr Tom Stassinopoulos did not make the offer until they got to Belvedere.  That is not so.  I merely raise that as an alternative theory to which the facts are susceptible.

In fact, another theory which seems to be supported by the evidence of Kotsikas is that the contract was formed by telephone and, of course, there was a telephone connection between the Black Diamond site and Loxton, of course.  If I could refer your Honours to page 10 of the application book.  Just at the very top of that page the review officer apparently accepts evidence to the effect that:

Tom Stassinopoulos had arranged the employment orally with his son Hara and myself -

this is Kotsikas talking -

a few days before Mr Spyridakos arrived.

If that had been arranged by Tom it would have had to be by telephone and, of course, the evidence is inconclusive because we do not know what then happened.  Tom may well have rung Hara, or Harry, at Belvedere and said, “Look I have got ‑ ‑ ‑

HAYNE J:   All of these, Mr Hackett‑Jones, sound very much like particular issues of fact rather than the points of principle.  Is there anything more you would say to us about the points of principle?

MR HACKETT-JONES:   I merely raise these, your Honour, as an indication of the various possibilities, different interpretations to which the facts are susceptible and I was just about to proceed to the questions of principle.

HAYNE J:   Yes, well, your time runs, Mr Hackett-Jones.

MR HACKETT-JONES:   We would respectfully suggest, on this question of principle, that the rules of contractual formation are unduly mechanistic and they fail to recognise sufficiently the complexities of contractual negotiation and the fact that the resultant contract spans both jurisdictions.  So, even if the engagement were made at Loxton between Mr Tom Stassinopoulos and Mr Spyridakos, we would say that the rules should allow for the result that the contract is formed in New South Wales because there are ‑ ‑ ‑

HAYNE J:   I notice the time, Mr Hackett-Jones.  Could you bring your submissions to a conclusion soon, please?

MR HACKETT-JONES:   Yes, certainly, your Honour.  We submit that the flexible rule that was proposed by Lord Wilberforce in the Brinkibon Case, should be generalised and made generally applicable to cases like this where there are elements that are essential to the formation of the contract in both jurisdictions and we would submit further, that the

Entores principle was wrongly - if we might respectfully say so, that Lord Denning wrongly formulated that principle, distinguishing cases of postal acceptance, from cases where modes of immediate communication are used.  Perhaps, if I could illustrate this by an example ‑ ‑ ‑

HAYNE J:   Mr Hackett-Jones, your time has now long since expired.  Why should we extend it?

MR HACKETT-JONES:   Because these are important questions of principle which - - -

HAYNE J:   Mr Hackett‑Jones, the rules in this Court are well known, and are well known to counsel; you have 20 minutes for your oral submissions.  Why should we extend it further?

MR HACKETT-JONES:   If your Honour pleases, I can only say that the case raises important issues of principle.  It may be that this rule is appropriate to a case that perhaps involves only one or two issues, but this case raises, really, a multiplicity of important points and - - -

CALLINAN J:   But they are formulated in your written outline, are they not, your important points?

MR HACKETT-JONES:   Yes, I have formulated them, your Honour, in the written outline.

HAYNE J:   Well, we have read those, and we have digested them, Mr Hackett-Jones.  Why should we hear you further?

MR HACKETT-JONES:   Well, I have said all that I can on that subject, your Honour, and if your Honour is not disposed to extend the time, then obviously I will have to be content with - - -

HAYNE J:   Yes.  Well, your time has expired, Mr Hackett-Jones.  We are not minded to extend it.  Thank you.  We will not trouble you, Mr Martin.

This case concerns the application of a section of the South Australian workers’ compensation legislation, which has since been repealed, and equivalent provisions of the New South Wales Act.  The provisions were construed by the Full Court of South Australia in accordance with long‑standing authority of this Court.  We are not persuaded that the decision of the Full Court is attended by doubt and, accordingly, special leave will be refused.  Is there any application?

MR MARTIN:  I make application for costs, if the Court pleases.

HAYNE J:   Can you say anything against that, Mr Hackett‑Jones?

MR HACKETT-JONES:   No, we do not resist an order in that case, your Honour.

HAYNE J:   Leave refused, with costs.

AT 2.43 PM THE MATTER WAS CONCLUDED