Zammit v TGT Transport

[2001] HCATrans 210

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M117 of 2000

B e t w e e n -

HEATHER JEAN ZAMMIT

Applicant

and

TGT TRANSPORT

Respondent

Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 22 JUNE 2001 AT 12.18 PM

Copyright in the High Court of Australia

MR R.P.GORTON, QC:   If the Court pleases, I appear with my learned friend, MR G.E. CHANCELLOR, for the applicant.  (instructed by Maurice Blackburn Cashman)

MR J.B. BINGEMAN, QC:   If the Court pleases, I appear with my learned friend, MR R.W. DYER, for the respondent.  (instructed by Deacons)

GUMMOW J:   Yes, Mr Gorton. 

MR GORTON:   If the Court pleases, this special leave application should be granted as the questions in issue raise the proper interpretation of the meaning of “authorised recess” in Victorian legislation relating to compensation matters in a way which has effect not only in relation to Victorian matters, but also in relation to legislation in other States, which contains ‑ ‑ ‑

GUMMOW J:   Now, Justice Charles dissented.  Are there any particular passages you can point to in the judgments in the Court of Appeal which encapsulate differences on construction, as distinct from different views as to how the facts fell out, or should have fallen out? 

MR GORTON:   Can I answer that not immediately – and I am sorry about this, your Honour, but the facts as found by the trial judge are important in looking at the judgments in the Court of Appeal and the facts, particularly ‑ ‑ ‑

GUMMOW J:   I understand that.  But we want to be satisfied that there are some differences to statutory construction, otherwise you are not advancing very quickly here. 

MR GORTON:   Yes.  What we have is, in 2.3 of our statement of factual background, which is not disputed, that the deceased was employed by the respondent to drive a truck from Melbourne to Brisbane and return.  The employment commenced when the deceased left Melbourne ‑ ‑ ‑

CALLINAN J:   We are familiar with the facts.  We really have read them. 

MR GORTON:   That is an important factor in the interpretation and perhaps in the difference between the judges.  Justice Charles accepted those findings of fact and, on the basis of those findings of fact, said at page 110 of the application book, line 5: 

In the foregoing circumstances it is, I think, of particular significance that the deceased was employed for a return trip from Melbourne to Brisbane, the whole period in which the deceased was absent from Melbourne until his return being one episode of employment. 

GUMMOW J:   Now, nothing turns on the fact that some of these events occurred outside Victoria, does it? 

MR GORTON:   No, your Honour.  It is the same whether it happened in Queensland or Woodend in Victoria, the same principles. 

GUMMOW J:   What is it that supplies the nexus? 

MR GORTON:   The legislation here entitles people to compensation wherever they are injured if they are engaged in Victoria, that is, employed in Victoria, so that it has that sort of extra-State operation.

GUMMOW J:   Thank you.

MR GORTON:   The most that could be said about it being important that it was in Queensland is that he was a long way from home and it was a long period of continuous employment, which might, in a factual sense, differentiate it from a short trip from Melbourne to somewhere and back in Victoria. 

So that Justice Charles has accepted that there is a one‑period episode of employment:  leaving Melbourne, going to Brisbane, and coming back to Melbourne.  He has found that in no sense could the trips to and from Brisbane have been described as different shifts, accepting the finding of the trial judge.  He, therefore, has said that in that situation it is appropriate for the trial judge to determine that a break in that period of employment, which has the authority of the employer, can constitute a “recess” where there is employment that the person is engaged in, he breaks for a period of time, and then returns to that employment. 

The two judges in the majority – the President, Justice Winneke, at page 91, starting at line 23 or thereabouts: 

Having determined that the deceased had been employed for the trip up to Queensland and back, the whole being but “one overall episode of work”, the judge then found that between the two trips the deceased had not been in the course of his employment when he departed from the service station at which he might have waited until told whether or not a return load was available.  Whatever might have been “the course of employment” had the deceased continued to wait at the service station, when he departed the service station for Beaudesert, he was, according to the judge’s findings, in an interval or interlude in an overall period of work. 

CALLINAN J:   The ratio of the majority seems to be – correct me if I am wrong – that “recess” in the Act has to mean, in effect, a defined occasion such as a morning tea break, an afternoon tea break, or a dinner break or something of that kind, but something which regularly and, in effect, formally occurs.  Is that right? 

MR GORTON:   That is part of the ratio, certainly, your Honour, and that ‑ ‑ ‑

CALLINAN J:   And you attack that, you say ‑ ‑ ‑

MR GORTON:   We attack that in the sense that when the ‑ ‑ ‑

CALLINAN J:   ‑ ‑ ‑ as too rigid a meaning to give to words which do not necessarily bear that meaning in the statute; is that right? 

MR GORTON:   Yes, your Honour.  That was a meaning which was applied to the words “ordinary recess” ‑ ‑ ‑

CALLINAN J:   Yes.  What is the other part of the ratio? 

MR GORTON:   The other part is that there has to be, according to the majority. that that recess, however it is determined, has to be a temporary break in actual work, as opposed to a temporary break in the course of employment. 

CALLINAN J:   Where do I find that in the application book? 

MR GORTON:   In the application book, you find it in saying – I am looking at the summary of argument rather than the notice of appeal – broadly, in ground 2(a) that the court erred in finding that they were not suffered during an authorised recess, without giving the particular matters relation to it, and again in (b) – they are perhaps not spelt out as fully and clearly as they could be – in the setting out of the grounds in the application for special leave, but it is a combination – perhaps if I can duck that question for a moment, your Honour.  In Landers v Dawson, which is really the authority that is the background of the determinations in all the States, the majority did say, at page 650 of the judgment, that: 

The word ‘recess’ in its normally understood acceptation –

relating to “ordinary recess” at the time –

refers to a relatively brief interruption in an otherwise continuous period of work.  It is normally associated with rest, refreshment or relaxation, such as ordinarily occurs at regular times, such as lunchtime, morning or afternoon tea, or ‘smoko’.  It is a period of rest incidental to a period of labour in its general acceptation.  The recess is something in the nature of an interval between two or more periods of work in the normal day. 

With that statement we agree.  Halfway down the next page, page 651, the majority says in relation to the case they were considering: 

The appellant was not working a continuous twenty-four hour day interrupted by relatively short breaks for refreshment or relaxation. 

And then also at page 651 it says: 

It is unnecessary to attempt to define exhaustively the meaning of the words “ordinary recess” –

If I might also refer to Justice Windeyer, page 654, about halfway down the page: 

By an “ordinary recess” I take it, is meant a break or interruption of limited duration in the continuity of a normal working day, regularly allowed for meals or rest.  The phrase seems to connote a suspension of activity which is to be resumed at the end of a stated period. 

GUMMOW J:   Is that not against you, really?  It suggests some formality about it. 

MR GORTON:   That was a determination of the phrase “ordinary recess”.

GUMMOW J:   Yes.  This is “authorised recess”.  This is even stronger. 

MR GORTON:   We have an “authorised recess” which – “authorised” takes it out of the requirement for normality and allows the particularity of recess with authority to be allowed. 

GUMMOW J:   Well, what force do you give to the word “authorise”?

MR GORTON:   “Authorised” is given with the authority of the employer.  It could be in a general way as covering ordinary recess, but it can be more and beyond that.  It is similar to “authorised absence” which appears in the New South Wales legislation and is dealt with in that legislation as meaning an absence in a continuous period of employment which has the authority of the employer but is not necessarily one that ordinarily occurs. 

CALLINAN J:   In a sense, in this case, the truck was your client’s workplace.  Is that right – in a sense?

MR GORTON:   The truck and Rocklea service station at the time, and what we ‑ ‑ ‑

CALLINAN J:   And he was on call, as it were, in the truck and at the service station. 

MR GORTON:   And required to be there, save for this break, which is the employer said, “Yes, you can come away from there”.  The importance of the case is whether there has to be, as the majority seemed to treat it, a working trip up – and that was work that took you till you have unloaded or gone to the next place – and a working trip back, and whether Landers v Dawson is talking about actual physical work or whether, in this case, there was a recess with authority in a course of employment where there was a requirement to be there, under the employment, but the work at the time of having to be there was waiting for something to happen, rather than actually doing something. 

Landers v Dawson needs expansion or explanation as to whether it is limited to a break in a period of actual physical work or whether its real importance is there being a break in a continuous period of employment.  By “continuous period of employment”, I am not talking about a period of years, but a starting point and a finishing point of course of employment for a job.  There is no doubt, as Justice Charles found, that in this case, there was a continuous period of employment.  There is no doubt, as Judge Rendit in the County Court found, that not only was there continuous period of employment but that there was a continuous one overall period of work and there is a break in that period of work with authority. 

The majority, Justice Phillips and the President, have divided the period of away from Melbourne up, and treated it as if it comprised a trip to Brisbane and that that was the end of work and then there was to be, when it was available, a load to come back, and that was to be the start of work and that work should be distinguished from an employment or course of employment activity that was required to be followed.  That is the principle that they applied:  drawing a distinction between work activities and course of employment.  We perceive that that submission was covered by the points that we had put in our notice of intention to appeal without being ‑ ‑ ‑

GUMMOW J:   Yes, thank you, Mr Gorton. 

MR GORTON:    ‑ ‑ ‑ application.  Might I say that – is my time up? 

GUMMOW J:   No.  What else do you wish to put to us? 

MR GORTON:   In his reasoning process, Justice Phillips held at page 100 and 101, or set out his conclusion, that:  “Accordingly, for the reasons I have” ‑ ‑ ‑

GUMMOW J:   We do not need to hear you any further at this stage, Mr Gorton. 

MR GORTON:   I just wanted to say – could I just make very briefly a point.  He talks about “authorised absence” on page 101 ‑ ‑ ‑

GUMMOW J:   You are pushing, as Sir Gerard Brennan used to say, against an open door.  We will hear from Mr Bingeman. 

MR BINGEMAN:   If your Honour pleases.  Notwithstanding your Honour’s comment, I would like to ‑ ‑ ‑

GUMMOW J:   You want to close it. 

MR BINGEMAN:   ‑ ‑ ‑ see what I can do to push the other way, your Honour.  This case was argued on one point, as your Honour would have read, on the question of authorised recess.  His Honour the trial judge found for the plaintiffs in a very short passage in which he did not appear to expand greatly on the matters that were taken on in appeal.  That was mentioned by the learned judges, so that if it was not fully put to him, then that is regretted, but not a point in this appeal.  Drummond and Landers’ Case are in the textbooks as to recess, so that on that point it matters not. 

Your Honour, what the trial judge considered in a lengthy review was whether this absence was part of a continuous employment and was therefore an incident to his employment or arose out of his employment and looked at Hatzimanolis’ Case and other cases and came to the clear view that on the evidence he could not find that.  We say with respect that this is a problem of the sort of the overlap in reasoning which to some extent Mr Justice Charles may have used, because he talks about in his opinion he could not see why it was not arising out of the general employment.  One gets that impression from his judgment. 

CALLINAN J:   But is not the difficulty the one that is adverted to by Justice Charles at page 104, the emphasis in paragraph 59?  The emphasis or the meaning that was put upon the word “ordinary” ‑ ‑ ‑

MR BINGEMAN:   Sorry, your Honour.  I could not hear you. 

CALLINAN J:   Paragraph 59.

GUMMOW J:   Page 104. 

MR BINGEMAN:   Yes, I have that, your Honour. 

CALLINAN J:   Has not, with respect, Justice Charles identified the difficulty?  How can you have regularity of the kind to which the majority has referred in the case of a truck driver who has to be on station, as it were, to pick up a call for a back load if it becomes available?  It seems to me that the notions in the other cases cannot readily be applied to the sort of occupation that the applicant was carrying on. 

MR BINGEMAN:   Well, if your Honour is saying that you have to look at the facts of each case and this case has got different facts, then of course that is so, but the principle, namely, that accepting the judge’s finding that on the Monday he had some work, he was at the service station, and that is work.  Then he goes away with another truck driver, not his employer – it is Biermaler ‑ ‑ ‑

CALLINAN J:   But he is waiting.  He goes away at a time when he is waiting for the possibility of a back load; is that not right? 

MR BINGEMAN:   Yes, that is so, but then he leaves, after they are told there is virtually no possibility of any load that day and it will be the Tuesday before there is any likelihood of a load.  That is the finding. 

CALLINAN J:   But a load might suddenly become available. 

MR BINGEMAN:   It was not found by the judge to be a probability at all. 

CALLINAN J:   No, but it does not have to be a probability. 

MR BINGEMAN:   Well, your Honour, this is what I am saying where Mr Justice Charles may, with greatest of respect, have taken the view your Honour is putting, but that view was specifically rejected by the judge.  He said specifically that his employment had ended and he had gone off on an authorised absence.

CALLINAN J:   But it was not his truck, was it? 

MR BINGEMAN:   No. 

CALLINAN J:   Well, his employment involved bringing back the truck, did it not, to Victoria? 

MR BINGEMAN:   It did, yes.  He would have resumed his employment, presumably, when he returned to the ‑ ‑ ‑

CALLINAN J:   Being available for a back load and then bringing the truck back were all part of his employment.  You say the answer to that is simply that a back load was not likely; that was the finding by the trial judge. 

MR BINGEMAN:   Yes, and the finding from the judge was that he therefore ‑ ‑ ‑

CALLINAN J:   It seems an unlikely thing that the outcome of the case should depend upon the likelihood or otherwise of a back load in this case. 

MR BINGEMAN:   Your Honour, I hear what you are saying and I am not prevaricating.  I am trying to tell your Honour that the trial judge specifically found that he was not in the course of his employment on this trip away to Beaudesert, that he had ceased employment and he had gone on this trip of his own volition unrelated ‑ ‑ ‑

CALLINAN J:   There is no doubt about the underlying facts.  It is the construction you put upon the facts, is it not? 

MR BINGEMAN:   These were findings. 

CALLINAN J:   That is simply a construction that the trial judge put upon the undisputed facts.  There was no dispute about them, was there?

GUMMOW J:   Where is this particular ‑ ‑ ‑

MR BINGEMAN:   Your Honour, could I take you to page 19 of the Court book?  It starts on 19 at the bottom, line 21, about the phone number – this was his employer – so that he could be in contact.  He makes that finding: 

On the evidence, the deceased’s attendance was simply one of going along because he had nothing better to do during what, for most interstate truck drivers, would be a boring and dead period of waiting.  There is a lack of evidence to support a finding that Zammit required or expected his brother to attend Beaudesert, even though I suspect that Zammit –

and he goes on and makes comments about his employer.  He said: 

Mr Gorton submitted that, as the deceased travelled with Biermaler to Beaudesert and was present there to the knowledge of Zammit who acquiesced in the deceased’s presence, I should conclude –

he argued –

that the deceased was present pursuant to an arrangement with Zammit.  I am not prepared to accede to this submission.  The deceased’s presence is equally explicable on the basis that he chose to go there and that his presence was unrelated to the conditions of his employment. 

And at page 21 of the Court book, 20 of the judgment, he goes on to say: 

On the other hand, if the deceased remained at the Shell Roadhouse, he could have been contacted on the mobile telephone in Zammit’s truck.  Therefore the deceased’s presence at Beaudesert was fortuitous and did not, in my opinion, result from any express or implied requirement of the deceased’s employment to do so.  I am satisfied the deceased was not present as an incident of his employment nor engaged in performing any of his contractual duties:  he was there on his own account, namely, filling in time.  Therefore I hold that the first basis of the plaintiff’s claim has not been made out on the evidence. 

It is a specific finding, your Honour.  The trial judge had it fully argued and although Mr Justice Charles ‑ ‑ ‑

GUMMOW J:   He went on to find for your opponent’s client, did he not? 

MR BINGEMAN:   He did, and that was on the very limited, if I may say so, finding that the absence was a temporary absence on the day and he just equated it with a recess. 

GUMMOW J:   At which particular paragraph is that? 

MR BINGEMAN:   It starts at page 24 of the application book, line 15. 

GUMMOW J:   Yes, that is it. 

MR BINGEMAN:   He goes over the page.  He starts dealing with section 83(2) and 83(1) – 82, sorry – that is the “deemed to arise out of”.

CALLINAN J:   His Honour accepted that it was an authorised absence, did he not? 

MR BINGEMAN:   He did.  He deemed authorised.  I do not take truck with that.  He said it was deemed in the circumstances because the employer never told, apparently, the deceased directly of this arrangement, but he somehow came along.  So he did not actually say, “You are authorised to come with me”, but it was implied by the employer being with him.  We do not argue against that.  But what his Honour did, and what, I submit with the greatest respect, Justice Charles has done, is to equate authorised absence with authorised recess.   Those are not the same concepts. 

An authorised absence can be for any purpose, for any time, anywhere.  That is part of the section, but if it is an authorised absence that authorised absence has to be an authorised recess.  Now, we say the word “recess” is the important word and that is the word that has been looked at by this Court and by the Supreme Court of Victoria since 1960, and it has been given a limited meaning.  No doubt my friend will say it is the word “ordinary” that makes it limited, and so the question is:  what does “authorised” do to change it from “ordinary”? 

We say, obviously, there may be differences from the previous court pronouncements on what is “ordinary”, but “authorised” is still a recess, it still connotes the same meaning, and it is not an authorised absence.  That is far too wide and is not the defining word.  Your Honour will see that in section 83(1)(a), I think it is, if your Honour will pardon me.  So that what the majority of the court did was to consider what “authorised” means in the terms of recess – and that is the only change in the legislation.  The New South Wales cases are an authorised absence.  It is a really different concept – it is a much wider concept. 

So that, for example, in Drummond’s Case in Victoria, where the young boy who worked for the baker went home and had a swim in between stopping work and starting again the same day, the court said that was not an ordinary recess and limited it to the sort of things that the High Court said in Landers’ Case.  We say, with the greatest respect, that it is a matter of fact as to what happened; it is a matter of law, obviously, as to whether it falls within the statute. 

The Court of Appeal, the two learned judges, argued it at great length, and I turn, your Honour, to 77 and 78, for example, in the application book, where Justice Winneke, the President, discusses the cases, discusses what is meant by “ordinary recess” and the High Court’s view of it and comes to the view that the word “recess” limits an authorised absence to something in the context of a recess as defined in the Victorian Act for 30, nearly 40, years.  We say that that is the perfectly reasonable way of interpreting it. 

There is nothing in this case – it is the facts of this case, simply, that have to be applied.  There is nothing wrong with their Honours’, with respect, law.  There is nothing wrong with their view of what it means, with the greatest of respect, but it is the facts of this case.  This case was more likely to win, if I may say so, and we thought so and we argued at

considerable length on general observance of out of the course of employment, or the scope of employment, but his Honour specifically would not accept that and found facts against that.  So it is left with this word “authorised”.  Now, that is a Victorian word; it does appear in one other State to my knowledge, but certainly it is not of general application because the “authorised recess” narrows it to the Victorian concept. 

We respectfully submit that this case turns on its facts.  It is not a matter of great principle.  The second reading speech which accompanied this amendment in 1992 is referred to by the President, accepted by Justice Charles, as to – although not deal specifically with this word, clearly indicates that the amendments of which there were a raft of amendments, were attempting to narrow the ‑ ‑ ‑

GUMMOW J:   Justice Charles points that out at page 105, paragraph 62 of his judgment. 

MR BINGEMAN:   Yes, your Honour.  Your Honour, there have been hundreds of amendments since 1992.  This is a statutory insurer that runs this scheme.  There have been hundreds and hundreds.  The Act is twice as big as it was then and nothing has been done about this section.  It is acceptable in its present form and it could easily cover a myriad of factual situations.  But in this case, in the particular facts of this case, it was held that the circumstances did not bring it into play.  There was no time that he was going to return to his employment and it was 4.45, as I understand the findings, that the accident happened, him having left some time in the early afternoon.  He may not even have returned that day.  There was no finding on that and the evidence was open. 

So that it is nothing to do with a recess; it is something to do with an authorised absence.  We say, with the greatest of respect, Mr Justice Charles who did come to the view that he thought it was open to the judge – if I may say so, with respect, it is not a strong dissent, saying that it was an important point, applies everywhere and I disagree with it.  On the facts, he might have gone another way and that is why we have referred to the cases of this Court which say that you would not lightly interfere with a trial judge where it is basically a matter of fact.  The Court of Appeal has interfered because they have found, as a matter of principle and law, that it could not have been applied in law.  If your Honours please. 

GUMMOW J:   We do not need to trouble you again, Mr Gorton.  There will be a grant of leave in this matter.  I assume it is safely within a one day limit for hearing?  It is a one day appeal, I would think. 

MR GORTON:   Yes, your Honour. 

GUMMOW J:   Safely within that time.  We will adjourn until 1.45. 

AT 12.52 PM THE MATTER WAS CONCLUDED