Workcover Corporation of SA v Pashalis A47/1994 [1995] HCATrans 92 (30 March 1995)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A47 of 1994

B e t w e e n -

WORKCOVER CORPORATION OF SOUTH AUSTRALIA

Applicant

and

MARTHA PASHALIS

Respondent

Application for special leave to appeal

BRENNAN J

DEANE J

DAWSON J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON THURSDAY, 30 MARCH 1995, AT 10.57 AM

Copyright in the High Court of Australia

MR S. WALSH, QC: If the Court pleases, I appear with MR M. CALLIGEROS for the applicant. (instructed by Gun & Davey)

MR M.W. SAIES: If the Court pleases, I appear for the respondent. (instructed by Palios Meegan & Nicholson)

BRENNAN J: Mr Walsh.

MR WALSH: If the Court pleases, the issue in this case is the circumstances in which a State Court of Appeal should decline to follow one of its earlier decisions. It raises in this case a matter of importance in the administration of justice in this State in the area of claims for workers compensation. The effect of the decision of the Full Court in this case is to leave one of the parties without a remedy at all.

The earlier decision of the Supreme Court, namely a decision of Cameron, as I will refer to it, the Full Court had decided that in issues between WorkCover or an exempt employer on the one hand and an employee on the other hand, that each of the parties had a right of appeal from the decision of a review officer under what is section 102 of the Act. The effect of the majority decision in this case is that only the worker has a right of review, as opposed to a right of appeal, and that WorkCover or the exempt employer has no right whatsoever. It is left without a right to challenge a decision of what has been said by the judges in places to be a decision of, in a sense, an independent review officer.

DAWSON J: Are you saying that the decision of the Full Bench was wrong because they ignored the doctrine of precedent?

MR WALSH: Yes, with respect, your Honour, that is part of the challenge that we make and, in particular, we say that in this case Cameron's Case involved the interpretation of a statute. In addition the result that has now been achieved by the majority has to make the system less workable. It has deprived one of the parties of a right and in circumstances - - -

DAWSON J: You say not only did they not follow precedent, but they did not follow a good precedent.

MR WALSH: Indeed, your Honour. If special leave is granted in this case, what we will seek to agitate is the proper basis upon which a court of appeal should look at the issue of overturning one of its own earlier decisions in the light of the importance of precedent.

DEANE J: Mr Walsh, what do you say about what appears at the bottom of page 16 of the book?

MR WALSH: That is the position of the applicant, your Honour?

DEANE J: The reference to you.

MR WALSH: Your Honour, the instructions were, at the time - - -

DEANE J: I mean, is that accurate or not?

MR WALSH: It is accurate in the sense that the challenge was on the basis that the minority decision in Cameron's Case was in fact the correct position, namely that there should be a review process available to both.

DEANE J: I follow the way it works, but might I say there is a little bit of tension, is there not, between that and what you have just said to Justice Dawson?

MR WALSH: Yes, your Honour, given that the instruction naturally was at the time to seek a result which would achieve parity in terms of the parties and best give effect, in a practical way, to the speedy process that was anticipated would apply under section 102 reviews.

BRENNAN J: Mr Walsh, there is no doubt, is there, as to the view of this Court about the authority of a Full Court of a State Supreme Court to depart from its own decisions?

MR WALSH: No, your Honour.

BRENNAN J: Why is this not just a case involving the construction of a statute which, on any view, is unsatisfactorily drawn?

MR WALSH: The reason why this case is somewhat special is because the balance of judicial opinion in this State in relation to the interaction of the sections is that six judges have, in effect, determined that the rights of workers and employers and WorkCover should be equal, as it were; namely that either each of them has a right of appeal or each of them has a right of review or, in one case, that neither has a right of review or an appeal. Now, the effect of this decision is that two judges have found that only one party should have a right of redress from a decision of the review officer under section 102.

BRENNAN J: It is not a matter of "should have", it is a question of what the statute has provided.

MR WALSH: And there is no doubt that the statute is open to different interpretations. Thus it was that his Honour the Chief Justice pointed out that, in his decision in this case, the whole issue had been ventilated in the earlier decision of the Full Court in Cameron and that the decision could not be shown to be plainly wrong and ought to be upheld. Now, we say, with respect, that there were two judges in the case at bar, namely Chief Justice King and Justice Millhouse, two judges in Cameron's Case, Justice Legoe and Justice Moore, that are ad idem as to what the proper interpretation should be, namely that both parties should have a right of appeal. There are two judges in the case at bar who have determined that there is a right of review only available to the worker. There was one judge, namely his Honour Justice DeBelle, who has determined that it may be that neither party has a right of appeal or a right of review. And there was one judge in the Cameron Case, namely his Honour Justice Bollen, who said that each party should have a right of review.

Now, the effect of all of that is, we say with respect, that the balance of judicial opinion is that the six judges have said that the parties should be treated equally. Now, there is no doubt, in our respectful submission, and we must now accept, as we do, that in fact this Act, the interaction of the sections can be interpreted in different ways. That being so, we say that a decision which, on the majority view, is hardly what Parliament intended is a decision that ought to be reviewed by this Court.

His Honour Justice Perry, at page 39 of the application book, made that comment. His Honour Justice Perry and his Honour Justice Prior formed two of the majority in this case and at page 39 his Honour commented at the top of the page:

It must be accepted that the conclusion which I have reached is hardly likely to accord with what Parliament intended.

So we have, therefore, two judges who have determined that only one party has a right of redress; one judge forming the majority, namely his Honour Justice DeBelle, saying clearly that WorkCover has no right of review and that the worker himself may not have a right of review either. So the position is now left on the basis that workers must be unsure as to whether they have a right of review. There are two judges who say they do, one who says they may not, and two judges who say no, each party should have a right of appeal, and the broad picture is that four judges of the eight judges believe that the proper interpretation is as in Cameron's Case, that there should be a right of appeal.

So that what we are left with is a problem in the administration of justice in this State relating to reviews and appeals in an area where there is much litigation. As pointed out in the outline of argument, it was put before the Supreme Court there are up to 1,000 section 102 decisions each year and, of course, after Cameron's Case was decided in October of 1983, there was a period of at least 10 months before the decision in Pashalis when litigants assumed that they had a right of appeal and were appealing, naturally, from decisions of review officers; that is whether it be WorkCover and the exempt employer on the one hand or the employee on the other hand. Now what we are left with is a situation where employees are in a position where they are not certain, because only two judges say they have a right of review, whether they have a right of review and a litigant, as it were, namely WorkCover or an exempt employer, have been left with no right whatsoever. So we say, with respect, that - - -

BRENNAN J: This seems to be a matter which is crying out for legislative attention.

MR WALSH: Indeed, your Honour, and there is no doubt that the judges on the Full Court were frustrated by the Act and by the unworkable wording of the Act. But I should say to this Court that there is, in fact, a bill before the Parliament which is regrettably hotly debated because of the political situation and the balance of power in the upper house, but the bill, as I read it, does not purport to apply in any way whatsoever to any trauma that occurred before the new bill might be proclaimed, if passed, and there is doubt about that at the present time. So that although there is some intention in respect of legislative intervention, it is not going to solve this problem.

Interestingly enough, the bill provides, as I read it, because it takes out the words "a review in section 97", that it would provide for an appeal being available to both parties if an equivalent of the section 102 decision were made. That, of course, would accord with the views of what I say is, in a sense, the overall majority of the court in so far as four judges have interpreted the existing Act as meaning that there should be a right of appeal available to each of the parties.

Now, we say, with respect, that yes, it is ordinarily not appropriate for this Court to be granting special leave in relation to the interpretation of a local statute but this case is quite different to the ordinary case in which one is simply looking at the issue of statutory interpretation. What is raised here is a very important issue relating to the administration of justice and, in addition, the very important issue and principle of when a Court of Appeal ought to review its earlier decision.

BRENNAN J: That must be a matter for that court, surely?

MR WALSH: Yes, with respect, your Honour, and it has been said and observed by this Court in cases that South Australia and other States' State courts have decided that they will review without any adverse comment about that, but guidance, in our respectful submission, from this Court is important in the circumstances of this case, given that the effect of this judgment is to make the area of the subject of the Act unworkable, create uncertainty whereas, following an earlier decision of the court which, as his Honour the Chief Justice pointed out had been fully argued in Cameron's Case, would at least achieve justice in the true sense. His Honour the Chief Justice had this to say at page 20 of the application book, at line 16:

These issues were fully considered in Cameron's Case. There were difficulties both of language and consequences in whatever construction is adopted. The construction adopted by the Full Court in Cameron's Case appears to me to be the preferable solution to the problems. It certainly cannot be said to be plainly wrong.

I do not think that the Review Officer's decision under s102 should be assimilated to a decision of the Corporation.

And he gives his argument and justification for reaching that conclusion. In our respectful submission, it is now abundantly clear that in fact, irrespective of what one or other of the parties might have thought previously, that the matter is open to debate and that on the proper exercise of a discretion by the Full Court as to whether it should overturn one of its only prior decisions, it ought not to have done so in this case.

BRENNAN J: Mr Walsh, if the legislation were to be amended in the fairly foreseeable future, how long would it take, in the ordinary course of events, for the present backlog of cases to work their way through the system?

MR WALSH: Would your Honour excuse me for one moment. If the Court pleases, it would take up to a year, we believe, possibly longer. My learned junior tells me nine months to 12 months to get appeals heard but the difficulty will be in the interim period, of course, that there will be no remedy available at all to the exempt employer or WorkCover against a decision which, on occasions, is made by a review officer under section 102 on documents only, or sometimes some oral evidence, but expeditiously and quickly. And we say, with respect, there is manifest injustice in that situation, given what his Honour Justice Perry said, namely that this result was hardly intended by Parliament.

If the Court pleases, they are our submissions.

BRENNAN J: Thank you, Mr Walsh. We need not trouble you, Mr Saies.

The construction of sections 95, 97 and 102 of the Workers Rehabilitation and Compensation Act 1986 (SA) is a question which ought properly to be determined by the Full Court of the Supreme Court of South Australia. If the decision of the Full Court proves to be inconsistent with the desired operation of the Act, amendment of the provisions which have been the source of uncertainty is preferable to an appeal to this Court. The case involves no question of general legal principle and it is for that reason that special leave is refused.

MR SAIES: May it please the Court, I make an application for costs.

BRENNAN J: You have nothing to say about that, Mr Walsh?

MR WALSH: If the Court pleases, no, we cannot resist that.

BRENNAN J: Special leave is refused with costs.

AT 11.14 AM THE MATTER WAS CONCLUDED