Hollins v Commercial Minerals Ltd & Ors S8/1994 [1995] HCATrans 160 (12 May 1995)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S8 of 1994

B e t w e e n -

DENIS PAUL HOLLINS

Applicant

and

COMMERCIAL MINERALS LIMITED

First Respondent

LANDORA SECURITIES PTY LIMITED (originally, NON-METALLICS LIMITED)

Second Respondent

AUQAL PTY LIMITED (originally QUALITY EARTHS PTY LIMITED)

Third Respondent

Office of the Registry

Sydney No S15 of 1994

B e t w e e n -

DENIS PAUL HOLLINS

Applicant

and

AUQAL PTY LIMITED (originally

QUALITY EARTHS PTY LIMITED

First Respondent

COMMERCIAL MINERALS LIMITED

Second Respondent

LANDORA SECURITIES PTY LIMITED (originally NON-METALLICS LIMITED

Third Respondent

Applications for special leave to appeal

DEANE J

TOOHEY J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 MAY 1995, AT 11.12 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MS A.J. KATZMAN, for the applicant in each of these matters. (instructed by Turner & Freeman)

MR C. GEE, QC: May it please the Court, I appear with my learned friend, MR A.J. BARTLEY, for the first respondent. (instructed by A.O. Ellison & Co)

MR J.D. HISLOP, QC: May it please the Court, I appear with my learned friend, MR G.J. PARKER, for the third respondent in the first application. (instructed by P.V. McCullogh & BuggyW)

DEANE J: Now, does that cover the second Hollins matter too?

MR JACKSON: Yes, your Honour.

DEANE J: I have a certificate from the Deputy Registrar to the effect that she holds a letter dated 18 April 1994 from Messrs Hickson, Lakeman & Holcombe, former solicitors for Landora Securities Pty Limited. The letter indicates that the company has gone into liquidation and the liquidator does not wish to participate in these proceedings. Yes, Mr Jackson.

MR JACKSON: Your Honours, this of course is the second occasion on which these matters have been before the Court. They were heard at the same time as the applications for special leave in Dedousis v Water Board, and that appeal has been dealt with by the Court. The resolution of the applications, of course, was adjourned pending the determination of the Court on that appeal.

Your Honours, so far as these cases are concerned, the issue raised in Dedousis was only one of the issues on which special leave was sought and the Court has not dealt with the other issues. The decision in Dedousis removed one of the grounds for special leave. Your Honours, the important issue concerning the Limitation Act is whether the test of awareness for the purposes of section 60I is subjective or objective. We have dealt with that issue in paragraphs 6 to 9 of the further submissions which we filed in respect of the matter, and may I perhaps assume that your Honours are familiar with the terms of those, and also the earlier oral argument.

Your Honours, may we say four things in relation to that aspect of the matter. The first thing is that it is clear, in our submission, that the Court of Appeal did apply an objective test. One sees that from the reasons of Mr Justice Handley at page 47, lines 1 to 10, and your Honours will see particularly the reference at line 5 to "reasonably foreseeable", and following that:

As a general rule it seems to me that variations in the later progress of a disease within limits that were reasonably foreseeable at an earlier stage cannot establish a relevant lack of awareness of the nature or extent of that disease for the purposes of section 60F.

That should be section 60I, in the light of the Court's decision. That is the first thing, your Honours. The second thing is that the application of a subjective test, in our submission, would have arrived at a different result. That that is so appears from the preceding page at lines 16 to 21, where your Honours will see that his Honour says:

It is true that he did not know its future course -

et cetera, going through to line 20.

Your Honours, the third thing is that there is nothing in section 60I itself which supports, in our submission, the application of a test other than a subjective test. Your Honours will see the test set out in section 60I(1); they use the expression "unaware". Ordinarily speaking, the term "aware" means, in the true subjective sense, aware. May I give your Honours a reference in that regard to a decision that was not on our list, I am afraid: it is Deming No. 456 Pty Limited v Brisbane Unit Development (1984) 155 CLR 129, and may I refer your Honours in that regard to the joint reasons for judgment of Justice Mason, Your Honour Justice Deane and Justice Dawson at page 151 - - -

DEANE J: This is one of those cases that one can remember hoping that you would never see again.

MR JACKSON: Your Honour, I appeared for the appellant in this, and your Honour may recall that it was a case where it seemed prudent to start by saying that you were unencumbered by merit and so might I get on with the law. Your Honours will see the relevant part of it at page 151, commencing about a third of the way down the page, where your Honours said:

We would be inventing a new doctrine of constructive notice if we were to hold that a purchaser is "aware" of a failure to comply with particular statutory provisions when he knows the facts, even though he is ignorant of those provisions and of the obligations which they impose.

And then the reference to the expression "becomes aware" referring to actual knowledge. That is the ordinary meaning, of course, of the term "aware".

The fourth thing we would seek to say, your Honours, is this, that the issue, in our submission, is one of importance, because of the reasons set out at page 71 in paragraph 19 of Mr Gardiman's affidavit, and I wondered if I might add one observation to that in the light of something that your Honour Justice McHugh said in the earlier case, and it is this. This is a case of course which concerns the construction of a statute estate. Your Honours, the fact that a case is national, has national implications, of course inclines to demonstrate its importance. The fact that it relates to one State does not, with respect, mean that it is unimportant, and may we also submit, if I might do so with respect, your Honours, one of the purposes of the appeal to the Court, albeit by special leave pursuant to section 73 of the Constitution, is so that there may be a review of decisions of the supreme courts of the States. Now, your Honours, in relation to that, it will inevitably be the case, and no doubt it was the case at the time of enactment of the Constitution, ex hypothesi I suppose, that many of the cases that would be involved would be cases involving the law of the States, and the determination that cases of that kind should be heard by this Court rather than the Privy Council is, with respect, to a degree a value that should be preserved.

McHUGH J: Well yes, but questions of constructions of statutes notoriously generate divisions of opinion; years of argument on either side, you substitute a 4-3 decision in the High Court for a 2-1 decision of an immediate Court of Appeal.

MR JACKSON: Well, your Honour, it must really, with respect, depend on the nature of the provision to some extent. When one gets a provision of this kind that is dealing with people in the situation of the workers who are sought to be benefited, if one has a construction adopted by the court sought to be appealed from, that applies what people might know or should know as distinct from what people do know, in circumstances where the legislature seems to have chosen a word that prima facie suggests a subjective test, it is an appropriate case for the court to consider the matter, we would submit.

McHUGH J: Dedousis was a special case, because, I mean, it is not unkind to say that the jurisprudence has got into a bit of a mess.

MR JACKSON: Your Honours, that is all I wish to say about the first matter. The second issue of law concerns whether future benefits payable under the Workers' Compensation (Dust Diseases) Act are to be taken into account when awarding damages for future economic loss. Your Honours, that is an issue which we have argued, and your Honours have seen the references to the passages. I do not wish to add anything to the argument in it; it seems to depend on which side of the line, in effect, Redding v Lee (1983) 157 CLR 117, the case falls.

Your Honours, the third issue, and an issue which, in our submission, is of importance in the present case, concerns the question of the manner in which the case was dealt with in the Court of Appeal, the issue of injustice. That issue is of significance in the present case, because the views adopted by the Court of Appeal, in our submission, do depart from, amongst other things, the findings of the trial judge after hearing oral evidence, and the evidence before him. It is impossible to go through in detail the matters that we sought to set out fairly exactly in the material that your Honours have seen. May I give again one example, the example which I gave on the previous hearing. If your Honours would go to page 75, what your Honours will see there set out in paragraphs 29(b) and (c) at the top of page 76, are two findings made by the primary judge: the first - and I am referring to paragraph 29(b) - is:

" At least as at 24 December 1982, the plaintiff (applicant) would have been, on the basis of that report, in some doubt as to the cause of his disease."

and then paragraph (c):

"I conclude that the plaintiff (applicant) had some doubts as to the nature, the extent and the cause of his disease, at least until sometime after 1986."

What your Honours will see then is that the findings made by the Court of Appeal appear in paragraph 30, and your Honours will there see the first of them being by Mr Justice Handley:

"I can only conclude that by 1979 the worker knew that he had silicosis, the general nature of this disease, its extent as determined by the Board in 1978 and its cause."

And then paragraph (b) - I will not read it out, but the expression of view that his knowledge:

was for all practical purposes complete at all times between 2 April 1979 and 15 August 1986 - - -

TOOHEY J: That being what, the date on which he was forced to retire?

MR JACKSON: It is the date, your Honour, on which, I think, the relevant limitation period would have expired. Your Honour will see that referred to at page 48 between lines 5 and 10.

TOOHEY J: Yes, but was 1986 the year in which he retired?

MR JACKSON: Yes, it was, I am sorry.

TOOHEY J: I just wondered if that was thought to have any significance on the basis that by then he would have been aware of the nature and extent of the disease.

MR JACKSON: Well, your Honour, that may have been the approach that was being taken by his Honour, but what we would submit is that that simply cannot stand with the finding to which we have referred at the top of page 76, where your Honour will see:

at least until sometime after 1986 -

Your Honours will see that in context at page 6, lines 12 to 14, which is where that passage comes from. There was evidence to support the primary judge's finding in that regard. Your Honours will see it in the supplementary book, which continues the same numbers, at page 118, lines 10 to 45. There was no cross-examination in relation to those aspects of the applicant's evidence. That appears at page 119. I have selected one example in saying that. Your Honours will have seen that in the written submissions we have referred to a number of matters where we contend that the view taken by the Court of Appeal in dealing with the matter was a view which did not give proper attention to the findings that have been made by the primary judge and also made findings which appeared to be inconsistent with the evidence which had been given at the hearing. Your Honours, those matters are summarised in paragraph 28 at page 75, and then your Honours will see they have been developed, of course, in the succeeding paragraphs. Your Honours, I am happy to go to any of them, but I would refer particularly, for example, to paragraph 35 and the matters there set out, and paragraph 36, by way of example.

TOOHEY J: Mr Jackson, in the light of the Court's decision in Dedousis, what matters raised by the draft notice of appeal do you seek to pursue?

MR JACKSON: It is dealt with, your Honour, in our further submissions, and your Honours will see that at paragraph 20. So the whole of paragraph 1 would go - the notice of appeal is page 82, your Honour. We would seek to add a new paragraph 2(c) in the terms set out in paragraph 20. Your Honours, I think in fact the words in that draft paragraph 2(c), "and 60I(1)(b)", should not be there, but subject to that, Your Honours, the notice of appeal would be as is. Your Honours, those are our submissions.

DEANE J: Thank you, Mr Jackson. Yes, Mr Gee.

MR GEE: Your Honours, first a point for which I must apologise: when announcing my appearance, I failed to make it clear that, because there are two applications, there is a bit of a permutation of where the parties appear. I am actually with Mr Bartley for Commercial Minerals Limited, who are the first respondent in No S8, and the second respondent in No S15. I apologise to the Court for that.

Your Honours, of course, as my learned friend has indicated, these matters have been for practical purposes fully argued and we respectfully rely upon the matters previously put to the Court in our written summary of argument and oral submissions. By way of supplement, could I first deal with the point said to arise from Deming No. 456 Proprietary Limited, where my learned friend took the Court to page 151 and submitted that the effect of a passage on that page was to produce the conclusion that awareness simply means awareness of a fact, and that in the context of the limitation provisions there was no relevant awareness until and unless one recognised that there was some breach of law involved, in effect.

May I respectfully point out that the passage in question deals with the particular words of the Queensland legislation there involved, and in particular point out that the words in the legislation, which can be picked up at page 149 in a slightly paraphrased form, require certain notices to be given. In default thereof some consequences follow and, in particular, the consequence might be that:

the purchaser may avoid the contract, agreement or document by notice in writing given to the original proprietor within thirty days after he first becomes aware of the failure.

Now, in that particular context, in our respectful submission, the Court was looking at the expression "aware" in the distinct context of its use in aware of a failure to comply with specific statutory provisions and, in our respectful submission, the discussion of what might be meant by "aware" in that case is of no assistance, with respect, here.

Second, your Honours, could I briefly indicate what our answers are in relation to the further matters: first of all, obviously, as my friend has indicated, the argument about whether section 60I was relevant to one of these applications has been answered adversely to his interests and the matter no longer concerns the Court. The second effect, and I say this with great respect to my learned friend, is rather made to look more different than it is. This is the material dealt with in paragraphs 6 to 9 of our learned friend's written submissions. If the Court would be good enough to go to the questions of law, which were crystallised in the earlier written outline, which is attached, and in particular page 2, it is annexure A to my learned friend's further submissions, your Honours; page 2 of those. In that document the applicant crystallised the special leave questions as:

Whether section 60F (first sentence) and section 60I.....are relevant to an application made pursuant to clause 4(4)(b) of schedule 5 to that Act.

That is the question that has gone.

If section 60F is so relevant, whether variations in the later progress of the disease, within limits that were foreseeable at an earlier stage, mean that there cannot be a relevant lack of awareness of the nature or extent of that disease for the purposes of section 60F.

Now, your Honours, it is perfectly true that Dedousis said, in what I hope is a summary that does it justice, that section 60F is not a 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************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************** As regards section 60I(1)(a)(iii), that was never argued. There was no evidence before the court before, nor was the point reserved, and therefore it would be submitted it would not be appropriate to return the matter to the Court of Appeal to deal with that. It was never agitated at any stage.

DEANE J: Could I ask all counsel one final question and that is: am I correct that for present purposes no distinction is drawn by anyone between the two cases?

MR JACKSON: We draw none, Your Honour.

MR GEE: Then everything follows, Your Honour.

DEANE J: The Court will announce its decision in this application at 2 o'clock.

AT 11.45 AM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.04 PM:

DEANE J: In these matters there will be a grant of special leave to appeal.

AT 2.04 PM THE MATTER WAS CONCLUDED