Wright v TNT Management Services Pty Limited

[1989] HCATrans 161

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S41 of 1989

B e t w e e n -

MARK WRIGHT

Applicant

and

TNT MANAGEMENT SERVICES PTY

LIMITED trading as COMET

OVERNIGHT TRANSPORT

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

GAUDRON J

Wright

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 7 AUGUST 1989, AT 9.34 AM

Copyright in the High Court of Australia

SlT 1 / 1/FK 1 7/8/89

SIR M. BYERS, QC:  In this matter, if Your Honours please,

I appear with my learned friend, MR B.R. FERRARI,

for the applicant, the plaintiff in the action.

(instructed by Teakle, Ormsby & Associates)

MR P.G. HELY, QC: If the Court pleases I appear with

MR A.J. SULLIVAN for the respondent. (instructed

by Ebsworth & Ebsworth)

SIR MAURICE:  Your Honour, the case concerns the question

whether section 52 and, we would add, section 53B

of the TRADE PRACTICES ACT extended to the case where an employee sued to recover damages for breach of the contract of employment, the relevant aspects of the

contract of employment oeing the obligation to

provide a safe system of work and competent staff.

The plaintiff's case was that a contract was

entered into at the place of work and the plaintiff's

duty was to unload a containe:c which contained a very

heavy material, up to 500 kilograms in weight, and which

involved the use of chains and fork-lifts to get

the heavy loads out of the container and, presumably,

on m the ground and the plaintiff - in a particular

instance, the plaintiff was standing near the

container - this is within an hour or so after the

engagement which was to - the plaintiff was told his

task was to unload a particular truck.

Your Honours will find that the relevant

facts are set out at considerable length in the

judgment of the learned judge below but, if

Your Honours go to page 41 in the judgment of

Mr Justia: McHugh, Your Honours will see the facts

summarized. Now, Your Honours, what happened was

that they decided to unload this 500 kilogram load

out of the container by means of a chain attached to

one end to the container and the other end to a

fork-lift truck. The chain stretched over a considerable

period of space. There was, presumably unknown to those engaged in this enterprise, another man in a

dubious state of sobriety, driving another fork-lift;

he drove into the chain and broke the chain which broke the plaintiff's leg and the weight fell out

which injured his shoulder. So he suffered quite

severe injuries.

Now, what the plaintiff says is this. He said,

"Now, when I made my contract of employment with you,

there was implied in it a term that the employer

would provide a safe system of work and would provide

competent employees, and that that involved a

representation of fact to that effect." Mr Justice McHugh

held that that was right. Mr Justice Mahoney and

Mr Justice Clarke said that something beyond the

making of the contract was needed, some explicit

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Wright

thing. For example, as I understand Mr Justice Mahoney's

judgment, if the supervisor had said, "We will

provide a safe system of work" in express terms,

His Honour would have found that there was a cause

of action established. Now, His Honour seews to tahE:: that

approach at pa~e 37, about line 15, Pis Honour having discus.s2d
the question of whether it was implied and having come to the

conclusion t..li.at the tenn was implied says - we will go to line 10:

The warranty, in the circumstances, may give the

worker to understand that that will be so.

That the safe system of work will be provided.

In such a case, the conclusion will be open that,

from the conduct of the employer in doing what

he did, the worker was to take it that the

employer would act in a particular way. And,

if the employer had, eg, no intention or no

provision for doing so, then the conclusion may

be open that that which the worker took from

the contract of employment would mislead.

But, in my opinion, this does not follow

where the warranty arises by imputation.

So, what His Honour is saying is, "If the employer said

'I will provide a safe system of work and competent
employees', then the cause of action would arise

under section 52, but if he just says 'I will engage

you on the work floor' when everyone knows that

that is an implied term, when you can see what is

happening" - in other words - what I mean by that,

Your Honours, is that the contract is entered into at the work-place, and at the place of work, now

the assumption is when the man says - the employer says,
"Your task will be to unload that container or that
truck", he is saying "I am giving you lawful
instructions. I am not exposing you, in other words,

to danger", because they are the only instructions

he can give.

So, therefore, we would say that the addition

of flourishes tends only to confuse the situation and
lead to what has happened, indeed, recently, I think

the next matter in Your Honour's list is a case where

there was a decision under section 52 in the

Federal Court, in favour of the workman upon the basis

that there was something additional. Now we

respectfully submit that is wrong. All it does is lead

to confusion.

The second way in which the case was put was this.

The work began, it went on for about an hour. What

the workman said in the court below was entry into

the actual working conditions implied a representation

that thev would be carried out with reasonable safety.

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Wright

So, that is the second step. Mr Justice Mahoney

and Mr Justice Clarke do not deal with that.

Mr Justice McHugh did deal with it, and held that

on that basis too a cause of action existed.

Your Honour, the procedure that was adopted by

the parties was this, that apparently

Mr Justice Rogers ordered that proceedings to strike

out the statement of claim should be instituted

upon the basis whether the facts pleaded and

particularized gave rise to a cause of action.

The trial judge said "No." The Court of Appeal by majority said, "No.", but remitted the matter

back to the common law division. The result was

that there was a decision of the Court of Appeal

that the plaintiff's case as pleaded and

particularized showed no cause of action, and so

that there was a final determination of the issue of

fact between the plaintiff and the defendant upon the

basis that the plaintiff wantca to put his case

and upon both bases.

MASON CJ:  What was the actual order made by the Court of Appeal?

SIR MAURICE: Well, Your Honour, the order is that there should

be judgment in accordance with the judgment of the

majority, which Your Honours will find at page 72 of

the application book. It says:

The proceedings be remitted to the Common

Law Division to be dealt with in accordance

with the reasons of the majority.

Then, Mr Justice Clarke agreed with Mr Justice Hahoney.

If Your Honours go to page 39, I think the order of Mr Justice Mahoney suggested is about line 7:

If the distinctions which I have made be

correct, then,with the benefit of hindsight,

the question framed by Rogers J is not fully

appropriate for the purpose for which it

was intended.	However, if the question is to
be answered upon the assumption that the conduct
in question is merely the making of the contract
which results in the imputation to the employer of the relevant warranty, then, in my
opinion, the answer to tLlt. question should be:
No. On that basis, the proceeding should be
referred to the Common Law Division to be
dealt appropriately.

MASON CJ:	How do you actually get an appealable order out of
all that?

SIR MAURICE: Well, that is a question, of course, Your Honour.

What we say is that that amounts to a final determination

of the plaintiff's case so far as it is based on a

cause of action which says the making of the contract ,

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Wright

and the pursuit of the contract give rise to

claims under section 52, because they have said, no,

it does not, and that is the order that is to be

given effect to.

MASON CJ: There have been problems in other contexts where

an appeal has been sought to be brought from answers

given to questions in stated cases.

SIR MAURICE:	Yes, Your Honour.
MASON CJ:	Now, how does this differ?
SIR MAURICE:	Your Honour, this differs because it is said that

the plaintiff has no cause of action.

MASON CJ:	But very often you find that the same effect is
produced by answers to questions in a case stated.

SIR MAURICE: That could be the result, Your Honour, but that

would all depend on what the case stated is. In other
words, the procedure is not the determinative faccor.

What is determinative is what the procedure brings about

and what we respectfully submit is that the procedure.

brings about here the obliteration of the plaintiff's

cause of action, and we submit that it seems to be

saying that, on any view - His Honour Mr Justice Mahoney

is saying, well, so far as you are relying on a

contract, you have no cause of action.

DEANE J: What if you fail in an appeal to this Court? Would

your approach be that there should be a verdict for

the defendant, or would your approach be that you

want to follow up Mr Justice Mahoney's invitation,

as it were, to say in the particular circumstances

of this case, there was more than the imputed warranty
and the employee was entitled to understand that

there was a representation as to a safe systew of

employment? If you do not want to answer it, I do not want

to tie the poor plaintiff into difficulties.

SIR MAURICE: Well, can I answer it this way, Your Honour, and

Your Honour will appreciate why I do it. If you

just look to the consequences of what has happened -

is that the Court has said you have got no cause of

action, we say. Now, true it is they have said:

Oh well, if you go back and - first I take

Mr Justice Mahoney for doing that. If you can stir

the facts up and find som~thing else then you may
have a cause of action, but what has happened here

is, so we would submit, Your Honours, is that the

plaintiff's cause of action has been eviscerated.

There is nothing left.

'

There is a problem, I must concede, because

His Honour Mr Justice Mahoney, and perhaps I am

mistaken here, but it did not, as we would read the

judgment, did not fully appreciate that there were

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two prongs to the argument. Although - - -

DEANE J: Except His Honour seems to say if there is a problem

it was not the Court's proble~, it was the way

the case was expressly put, and that is that there

was no reliance on a representation beyond the

argument that if you could find an imputed warran:.y

aE a m,' ttEcr of la.w, ;_here was a representation as

a matter of fact to the effect of that warranty.

SIR MAURICE:  His Honour may be intending to say that, Your Honour.

I think, with great respect, His Honour really said a bit more, because, if Your Honours go to page 32,

about line 21:

In his submissions he -

that is Mr Meagher,

indicated that the plaintiff puts his case

in two ways, namely, that when entering into

the contract of employment the employer
represented and warranted to the worker that

the system of work which operated was safe

and that his fellow employees were competent
and careful; and, in the course of the

worker's employment, the employer's servants

misrepresented to the worker that the

employer's system of work was safe. And, as

it was put, the representation on which the

worker relies in each ca~e is a representation

implied from conduct.

So he is saying that your actual entry into and pursuit

of the contract affords no cause of action. Because

when he comes to make his order, I will apprehend,

Your Honour, that he is saying: well, neither of those grounds, because he - however he sees the questions

answered and subsequent conduct and so on, which

is the passage I have already read to Your Honour.

That is the order Mr Justice Mahoney made and

I think - I must concede, Your Honour, there is a

certain element of ambiguity in what the order

really amounted to. Your Honour, I cannot avoid that

I think. That is the result of what the Court did.

Mr Justice Clarke was to like effect, bottom of page 70

and the top of page 71. His concluding words were:

Because of the possibility that the appellant

may wish to recast his case -

this is page 71 -

or widen the terms of the points of claim

I would accept that such an order -

that is the order referred to by Mr Justice Nahoney -

is appropriate in this case.

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So, what that means is, I would apprehend, is that

they have said: well, there is a demurrer, which,

of course, no doubt, is not a final order, we will

uphold the demurrer to the cause -of action. You will

have leave to replead, but it is an order in

relation to which this Court had given special leave to

appeal in the past and no doubt in a sense it is - - -

MASON CJ~	I did not quite understand what you were putting.
SIR MAURICE:	What I am saying, it is equivalent to a demurrer.
MASON CJ: Yes.
SIR MAURICE:	And, in relation to demurrers, the Court has

given special leave to appeal.

MASON CJ:	The Court has always been reluctant to give special
leave to appeal in relation to a demurrer point which is not necessarily dec~sive of the plaintiff's cause of action.
SIR MAURICE:	Yes, Your Honour. That is true, Your Honour, but

this is decisive.

MASON CJ:	Is it? Why is it decisive, in view of what appears
in Mr Justice Clarke's judgment at page 70?

SIR MAURICE: Well, it is decisive because they have said,

your cause of action, based on contract alone, is

non-existent. Now, they may have said, you have got

another cause of action - but that is wnat they have said.

Undoubtedly they have said that. Now, what we say is,

that is really, finally to determine one prong of

the cause of action, on any view.

MASON CJ: But, granted that, the Court has not been disposed

in the past to grant special leave to appeal so as

to deal with one leg of a plaintiff's case.

SIR MAURICE:  Yes, Your Honour, but what is the plaintiff to do.

May I put it this way. If one goes back to a trial -

if one is thinking of the way the administration of

justice is to be best served, with respect, the
plaintiff is precluded by the order from going ahead
with his case on the basis of the representation

derived from the representation made under those

circumstances, the plaintiff cannot do that because

the order says no, that is no legal cause of action.

But they are saying, "But you might have another

one, down this road. If you can find an express

statement somewhere, presumably by conduct or by"- - -

MASON CJ:	But should that not be clarified before this
Court is asked to determine the questionsY

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SIR MAURICE: But, Your Honour, all I am saying is, you

cannot clariJy it any more thar_ it is clarified at

the moment. By that I mean. Your Honour, that -

certainly on any view - one arm of the plaintiff's

case, both as to - - -

MASON CJ:	You prefer "arm" to "leg"?
SIR MAURICE:	That is because you can be thrown out by your

leg, Your Honour, so I would prefer "arm". One

arm of the plaintiff's case has been, as it were,

amputated, and that is lost and that is final, so we

say, that is really final, and really, Your Honours,

Mr Justice Mahoney's observations as to the procedure

suggested by Mr Justice Rogers may well have much

to be said for them, but the way they work here -

the way the procedures work here - is that the

plaintiff .iust is left without any means of

challenging the correctness of, what I might call,

the contract point, and, I would have thought the

other point - when I say the other point, I mean the

other point that Mr Justice Mahoney refers to, because

he said: well, that is the representation about the

continuing the pursuit of the contract, so that is gone.

So that one is left with the possibility that

you dredge out a specific express representation.

DEANE J: Sir Maurice, can I ask you this_: is your point, or is

the point that wherever there is an imputed warranty
there is a representation of fact to that effect for

the purposes of section 52, or is it that in the

particular circumstances of this particular case there

was a representation of fact for the purposes of

section 52'l

SIR MAURICE:  Well I would wish to say that in cases of master

and servant - all cases	of master and servant - there
is such an imputation.	I would not wish to say,
Your Honour, that - - -

DEANE J: But you do not have to look at the facts of the case .. If

there is the imputed warranty in the contract, there

is a factual representation.

SIR MAURICE:  Yes, Your Honour.

DEANE J: What if the employer said, "But I had better warn you

the system of work is atrociously unsafe"?

SIR MAURICE:  Your Honour, that could be one - I suppose you could

have one of two things. Either you would have no

implied term in the contract - - -

DEANE J: Well, then,does that not mean that your general proposition

has to be qualified and you do come down to the facts of

the particular case?

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SIR MAURICE:	I would resist such a conclusion, Your Honour.
DEANE J:	No doubt, because that seems to me the direction

that Mr Justice Mahoney's judgment points you towards.

SIR MAURICE: Yes. Well, Your Honour, I think, if in the

illustration Your Honour Mr Justice Deane has given

me I suppose one would say there Wis no implied term.

So it is not a case of imputation, it is just a case

of the parties of a special contract under which the

employee is exposed to any risk and he just, sort of,

takes it upon himself. So you would not have a

conventional contract- what I mean by conventional contract is, a contract in which the Court would

imply or impute such a term.

DEANE J: Well then, what if he said, "While under the terms

of the contract I will be liable in damages if the
system of work is not safe, but just for your own

information, and not affecting our contract, I am

telling you the system is atrociously unsafe"?

SIR ~..AURICE:  I would find it difficult ~o say that that -

apart from the fanciful nature of the case, with

respect, that you would say there would be a
representation from the imputed term, but, in a

sense, I would imagine what we would be saying is,

it is the presence of the imputed term that gives

rise to the warranty. If an express statement does

not add to that, it is still there. By the words

"it"is still there, I mean the term of the contract

is still there. If the party, to follow what

Your Honour Mr Justice Deane put to me, said, well

look, it is atrociously unsafe, well then, what, perhaps

I would be forced to say under such circumstances,

Your Honour, is that in all such cases the imputation

or implied term does not arise, that you have a special

contract.

Now, Your Honour, I think that is all I can say

in answer to what Your Honour has put to me about

the nature of the case and the way in which we say

to Your Honours, with respect, that it raises an
important question.	No member of the - the trial judge

said that the wards - the trial judge said, Your Honour,

the heading excluded the availability of the remedy,

but none of .the members : uf the Court of Appeal adopted

that view, and, indeed, it is dealt with at some

considerable length in Mr Justice McHugh's judgment

and it has been, I think, reaily dealt with by

decisions of this Court - maybe not to the full
extent that I would wish, but certainly a fairly long

way and there are decisions of the Full Federal Court

which would support what we would wish. Your Honour,

that is what we wish to say.

MASON CJ: Yes, thank you, Sir Maurice. Yes, Mr Hely.

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MR HELY:  If the Court pleases, our submission is this matter either

cannot come to this Court, or alternatively, should not

come to this Court unless the appellant accepts that

a consequence of the failure in its submissions is a

verdict for the defendant.

At least two cases in this Court support

our submission. The first is the decision in

SWISS ALUMINIUM V COMMISSIONER OF TAXATION, 73 ALR 584

in particular at page 587, line 20.

The second is the decision of this Court in

BUTLER POLLNOW PTY LIMITED AND ERROL HUGH POLLNOW V
PAUL DEAN RAMSBOTTOM-ISHERWOOD, which is reported in

volume 8 of the Legal Reporter for 8 January 1987,

No 1. That was a case in which separate determination

of the questions was ordered by the supreme court

and the questions were answered, and the questions

were a step in the process of determination of the

plaintiff's case, but it did not conclude that case.

Our first submission is that unless the

appellant is prepared to answer Mr Justice Deane's question in the affirmative, it is not appropriate for the case to come to this Court. Second, we

submit that the appellant's submissions have not

established the existence of sufficient doubt as to

the correctness of the majority decision in the
Court of Appeal to justify the granting of special
leave. Whilst it may be accepted that the question
of the potential application of the TRADE PRACTICES ACT
to the industrial situation is a question of general
public importance, in my submission, the appellant's

submissions are not indicative of error in the

conclusion th6t ttte bare fact of entering_ into_ a contract

cannot of itself constitute a contravention of

section 52 and absent additional circumstances, the

existence of which are not pleaded.

(Continued on page 11)

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DEANE J:	Mr Hely, if· the matter were to come before this Court, would your primary position be that accepted
by Mr Justice Lee rather than that accepted by
any members of the Court of Appeal?

MR HELY: If I had to, in effect, indicate a list of preferences,

it would be Mr Justice Lee first, Mr Justice Clarke

second,, Mr Just ice Mahoney third and

Mr Justice McHugh, with respect, fourth.

MASON CJ: That makes it clear enough.	Thank you.
MR HELY:	They are our submissions, if the Court pleases.
MASON CJ:	Yes, Sir Maurice~

SIR MAURICE: If I could say a word about these cases, and

naturally our preference is a bit different from

my learned friend, perhaps you could reverse

them, but might I just say, Your Honour,

Mr Justice Lee's preference does raise a serious

question of construction and therefore my friend

is really saying that he wants to mount a serious

question of construction before the Court.

Might I just say something, SWISS ALUMINIUM,

Your Honour, at page 587, line 19, Your Honours

say:

It is well settled that an order must

finally determine the rights of parties before

it will qualify -

and then, Your Honours, quoted a number of authorities -

Thus a distinction has been drawn between

answers given to questions in a stated or
special case which determine the rights of

the parties -

that is line 25 - and those "which are advisory'.

They say .•••• -

Then, Your Honours, if Your Honours go over

the page, page 588, the first full paragraph which

is about 15 lines down, Your Honours say:

Thus, in the present case, the effect

of the Full Court's decision was to establish

that D79 was a document to be classified as

an exempt document. But the decision did

not determine that the appellant had no right

of access to the document. The making of

such a determination depended on a decision

that the document contained no matter other

than exempt matter. The Full Court not having

S 1T2/l /ND 11 7/8/89

Wright SIR M. BYERS, QC

considered this question, it was for the

Tribunal to deal with it when the Tribunal

took up the reference -

And then, Your Honours, skipping the next

paragraph Your Honours say:

We accept that the question whether an

order finally determines the rights of a party

is one which must be resolved in a practical

way.

And that is what we would respectfully submit,

Your Honours.

It would be wrong to adopt an unduly technical

approach by insisting on the taking of a further

purely formal step in the proceedings for

the sake of achieving mere technical finality

where in every practical sense finality already

exists.

And we say that is satisfied here for the reason

I endeavour to elaborate to Your Honours.

So we would submit, with respect, Your Honours,

that it is a question of general public importance,

my learned friend proposed to argue a question

of general public importance and that Your Honours

should grant special leave.

MASON CJ:  Yes, thank you, Sir Maurice. The Court will stand

this matter down until it has heard argument in

the second case listed, CONCRETE CONSTRUCTIONS

V NELSON.

AT 10.08 AM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

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UPON RESUMING AT 2.16 PM:

MASON CJ:  The proposed appeal raises important questions of

law which would, in an appropriate case, warrant the

grant of special leave to appeal. However, when

attention is given to the limited question which was

argued in the Full Court and the terms of the order

remitting the matter back to the common law division,
it is evident that the order made by the Court of

Appeal does not finally determine the applicant's

rights.

At this stage the application must be refused

but this will be without prejudice to the applicant's

right to renew its application if and when an

order determinative of the applicant's rights is

made.

SIR MAURICE: If the Court pleases.

MR RELY:	I ask for an order for costs.
MASON CJ:	The application will be refused with costs. You

cannot resist that, can you, Sir Maurice?

SIR MAURICE:  No, Your Honour.

AT 2.17 PM THE MATTER WAS ADJOURNED SINE DIE

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