Walker v In Line Couriers Pty Ltd & Anor M141/1998 [1999] HCATrans 150 (14 May 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M141 of 1998

B e t w e e n -

ALEXANDER MICHAEL WALKER

Applicant

and

IN LINE COURIERS PTY LTD and TRANSMET TAXI TRUCKS PTY LTD

Respondents

Application for special leave to appeal

McHUGH J

KIRBY J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 MAY 1999, AT 11.04 AM

Copyright in the High Court of Australia

MR R.P. GORTON, QC: If the Court pleases, I appear with my learned friend, MR P.J. COISH, for the applicant. (instructed by Slater & Gordon)

MR J. RUSKIN, QC: If the Court pleases, I appear with my learned friend, MR W.C. GRAINGER, for the respondent. (instructed by Corrs Chambers Westgarth)

McHUGH J: Yes, Mr Gorton.

MR GORTON: If the Court pleases, this is an application in a particular case affecting Mr Walker who was injured in the course of his employment; obtained a judgment for damages after a hearing for $175,000 and then, on appeal, his claim or his entitlement to damages was determined by the Court of Appeal to be statute barred by reason of provisions of the Accident Compensation Act 1994 of Victoria.

It is the applicant's position that that decision of the Court of Appeal was clearly wrong on a proper analysis of the sections that were involved in the decision; that the court failed to give due regard to various amendments.

McHUGH J: Your difficulty is, is it not, that as a result of the 1994 amendments, section 135B(2) precludes recovery in any proceedings to which this section applies which were commenced after 30 June 1994, in the literal terms of 135B encompasses proceedings commenced under section 135A(2)(b).

MR GORTON: Well, that is what the Court of Appeal decided and that is what we say is clearly wrong. If it is not absolutely clearly wrong, on a proper interpretation of section 135B in the context of the other sections, at least it is attendant with sufficient doubt to justify and make important the examination of the extrinsic material which included not only the second reading speech but also the explanatory memorandum attached to the Bill as provided to Parliament through the draftsman making it explicitly clear that it was not the intention of the Bill, as drafted, and the legislation, as passed, to put a bar upon the right of recovery for damages where that right was dependent upon satisfying section 135A(2)(b).

CALLINAN J: His Honour the trial judge - am I correct - said that, in effect, "injury" in 135B involved an appreciation of the true significance of the injury; its seriousness. Is that right?

MR GORTON: Yes, it is.

CALLINAN J: So that his Honour read quite a lot into the word "injury" in the section.

MR GORTON: And properly so.

CALLINAN J: Why?

MR GORTON: Really, because of the insertion in 1994 into section 135B of subsection (1A) and because of the general structure and history of these sections revealing the intention and purpose of subsection (1A). Perhaps if I might expand on that a little. Prior to 1 December 1992, the scheme for providing damages for injured workers was that they could recover pecuniary loss damages with a cap on them for any injury suffered in the course of their employment, "injury" being defined generally for the purposes of the Act.

The scheme was changed in December 1992 and the substance of the change was that from that date onwards, with some exceptions that I will refer to in a moment, there was to be no entitlement to recover pecuniary loss or non-pecuniary loss pain and suffering damages for injury suffered where a compensation benefit existed unless that injury was a serious injury. There was the introduction into the Accident Compensation Act in December 1992 of a definition of "serious injury" which had not previously been in the Act. That definition was found in section 135A(19). The definition of "serious injury" which was introduced then continued from that time onwards and was not affected by the amendments in 1994. So that a new definition of "serious injury" was introduced which, relevantly for this type of proceeding that Mr Walker was involved in, required a "serious long-term impairment or loss of a body function". So that the new definition of "injury" came in which had to be satisfied from December 1992, before an injured person could recover any damages.

When that change was made, the intention, as expressed in the parliamentary debates, was that there would be a run-off of the earlier unclassified injuries occurring before 1 December 1992 and that run-off would be dealt with, with procedural requirements, to get the claims disposed of rapidly through forced negotiation with potential cost penalties if sensible settlements were not arrived at, a plan to rapidly get rid of the earlier schemes damages provisions.

At the time of that change of scheme, section 135A(2)(b) was also introduced into the Act in the form that it remained. Its introduction at that time could not have been designed to be a limitation period or to dispose of claims falling within its terms because it was extending a new right which otherwise would not have existed. Then it was found by the Court of Appeal that the scheme for rapid resolution of the earlier unclassified injuries failed because of drafting errors in section 135B and that it was held in Robart v Matchplan that section 135B did not stop the issue of proceedings for the earlier unclassified injuries.

It was amendments in 1994 that were introduced to overcome that failure of 1992. Those amendments in 1994 introduced into section 135B changes in - - -

McHUGH J: When you say "introduced", the fact is that it is almost as if it was a new 135B, is it not?

MR GORTON: Well, there are substantially new parts to it and there were substantial retention of the old scheme of rapid disposition, negotiation, cost penalties and so on that were retained. What was restructured was the element of making sure that the rights to make claims for those earlier unclassified injuries were to be finished and rapidly disposed of.

McHUGH J: But the form of subsection (1) was changed entirely and that is what seems to me to create the problems for you.

MR GORTON: That is what, again, the Court of Appeal has said. But what the Court of Appeal did not have regard to was the introduction into section 135B of subsection (1A) by these amendments in 1994. Subsection (1A) is a subsection which, we say, can have only one purpose. It is fundamentally, at first sight, a meaningless subsection. It expounds what everybody would say was the law, that when you are looking at a piece of legislation which defines "injury", you have to look at the definition that applies at the relevant time to determine what "injury" you are talking about.

What subsection (1A) does beyond that, and its purpose for existence at all, is to qualify the word "injury" and to define the word "injury" in section 135B(1)(b); therefore, to qualify the meaning of "proceedings to which this section applies". In section 135B(1)(b), the area covered is:

proceedings.....after 1 December 1992 to recover damages in respect of an injury arising before that date.

McHUGH J: But, literally, those words cover a serious injury which falls within 135A(2)(b).

MR GORTON: No, your Honour. Literally, leaving aside (1)(b) - - -

McHUGH J: Subsection (1A).

MR GORTON: Sorry, (1A), yes, they literally cover it. But when you look at the definition of (1A) to the meaning of injury in that subsection - - -

McHUGH J: That is the subsection which says:

A reference in this section to an injury is a reference to an injury within the meaning of this Act as in force when the injury arose.

MR GORTON: Yes. Now, before December 1992, there was a definition of "injury" in section 5 of the Act. After December 1992 there was a definition of "injury" in section 5 of the Act and there was a further definition of "serious injury" in section 135A introduced for the first time in December 1992.

In section 135A(2)(b), which is the section this plaintiff was relying on, he had to establish a serious injury. There was no such definition of "serious injury" in the Act before 1 December 1992. After 1 December 1992 he has to establish in relation to the events that occurred before 1 December 1992 that they constitute a serious injury as defined later on. Subsection (1A) is a section designed to carry into effect the draftsman's or Parliament's intention that "proceedings to which this section applies" would only be proceedings relating to unclassified or minor injuries as that terms was defined before 1 December 1992. From that time onwards - - -

McHUGH J: But the term "serious injury" is adjectival, is it not? Because 135A(2)(b), "if the injury is a serious injury", so it concentrated on "injury" and it said it had also to be "a serious injury".

MR GORTON: Yes, and "serious injury" gets a specific definition as a term, not as a word added to "injury" as an adjectival description of it but as a term, a phrase, "serious injury", a new concept, an additional concept that is required.

McHUGH J: If you write it out in longhand in 135(2)(b), relevantly, it is "if the injury is a serious long-term impairment or loss of a body function" and arose before that date.

MR GORTON: No, in 135A(2)(b) - - -

McHUGH J: Yes, but it says:

If the injury is a serious injury -

by definition, "serious injury", relevantly, is a:

serious long-term impairment or loss of a body function.

That is what you rely on.

MR GORTON: That is, and that is a definition that is satisfied after 1 December 1992 and did not exist in the legislation before that.

McHUGH J: I understand that, but what I was putting to you, Mr Gorton, was that when you refer to subsection (1A) in the new 135B, it is still referring to "an injury" in terms of 135A(2)(b) because 135A(2)(b) is speaking of an injury which constitutes a "serious long-term impairment" et cetera.

MR GORTON: We, I think, just say that we disagree with that proposition, that "injury" where it is referred to in 135B(1)(b), because of the definition in section 135B(1A) means something other than a serious injury. Once you get it to be a serious injury, section 135B has no application because a serious injury and the event occurring before 1 December 1992 which manifests the characteristics after 1 December 1992 of a "serious long-term impairment or loss of a body function" becomes something - - -

McHUGH J: I understand that but you have to face up to the fact that subsection (2) is introduced by the words:

A worker may recover damages in respect of an injury arising out of, or in the course of, or due to the nature of, employment -

if he can bring himself within paragraph (a) or paragraph (b). But the cause of action is in respect of the "injury arising out of, or in the course of, employment".

MR GORTON: It is not the opening words of 135B(2) that govern this argument. Those opening words are wide enough. But it provides that he:

shall not, in proceedings to which this section applies -

which forces you back to subsections (1) and (1A). It is not a blanket ban provided by section 135B(2). It is a ban in the limited area where the section applies.

McHUGH J: You have to do a lot of work on 135B(1)(b) to say that "injury" in that paragraph does not refer to 135A(2)(b) injury.

MR GORTON: We would concede that one has to do a lot of work. It is simple, but we understand the argument that your Honour is putting. The next stage, if we are not right in saying it is clear that this section does not apply, is that it is clear enough that there is real ambiguity about the application of this section to a situation such as Mr Walker's, that there was some ambiguity was recognised by the Court of Appeal when it said that it is "almost free from ambiguity" rather than saying it was "free from ambiguity".

McHUGH J: But in any event, they went on to point out that there is some confusion in the Minister's speech in any event and, having regard to what was said in Mills v Meeking, you could hardly rely on that confusion to gloss the plain words of the section.

MR GORTON: In saying that, they had not considered the argument that we are putting now. What we are putting now adds to the confusion, at least, of the proper interpretation of section 135B and creates or enhances the ambiguity that was there and justifies going to the explanatory memorandum as well as the second reading speech. The explanatory memorandum, whatever the ambiguities might be in the second reading speech, is explicitly clear that it was not the intention of this amendment to dispose of claims which fell within section 135A(2)(b).

McHUGH J: That is not because they specifically said - - -

MR GORTON: Yes, it is because they explicitly said that. In the explanatory memorandum it is explicitly clear that that was not the intention of clause 64.

KIRBY J: What page of the memorandum?

MR GORTON: It is page 2 in number 1 of our - - -

KIRBY J: This is behind tab 2?

MR GORTON: - - - documents, your Honour. It is not in the application book. You have the applicant's documents - - -

KIRBY J: Yes, it is behind tab 2. Where, on the page?

MR GORTON: Clause 64 which is just over halfway down.

McHUGH J: I am sorry, are you looking at the explanatory memorandum?

MR GORTON: Yes, your Honour, in the applicant's authorities, tab 1, page 2 of the explanatory memorandum, clause 64.

McHUGH J: Clause 64.

MR GORTON: Where it provides:

Clause 64 amends section 135 (Actions for damages), 135A (Actions for damages) and 135B (Actions in respect of injuries which occurred before 1 December 1992) of the Principal Act so as to clarify the operation of those sections and, having regard to the decision.....Robart v Matchplan Pty Ltd (In Liquidation), to provide that damages are not recoverable in proceedings in respect of injuries or deaths arising prior to 1 December 1992 (apart from those injuries referred to in section 135A(2)(b)) where those proceedings are commenced on and after 30 June 1994.

It is our submission that that is an explicitly clear statement of the draftsman's understanding of section 135B, and it is consistent with the slightly less clear statement in the Minister's second reading speech.

McHUGH J: It is a lot clearer than the Minister's speech, is it not?

MR GORTON: It could not, in our submission, be any clearer. It is an absolute statement, we say.

McHUGH J: Yes, it is.

MR GORTON: And we say that this decision has an impact on the evidence that is before the Court, 140 people in one firm of solicitors' offices. They are one firm - - -

McHUGH J: Yes. Well, I think your time is up, Mr Gorton. Yes, Mr Ruskin.

MR RUSKIN: May it please the Court, we say that this case does not raise any matter of public importance or principle, it is really a case about statutory interpretation of a local statute in respect of which - - -

KIRBY J: You cannot say that since Justice Callinan came on the Court. Every case has to be considered on its own basis and it affects a lot of working people.

CALLINAN J: This is the High Court of all the States as well as of the Commonwealth.

KIRBY J: I used to slip into that mistake until Justice Callinan pointed out that it is erroneous. It is like saying that we just do not worry if it is a local statute.

McHUGH J: Well, if it is any comfort to you, Mr Ruskin, if the orthodoxies change, then I am a heretic.

MR RUSKIN: I am really delighted to be, with respect, in such great company.

CALLINAN J: The difficulties with amending State statutes, indeed, of amending any statutes are, in my view, grossly understated and ignore, perhaps, the realities of the political system and the priorities which governments have, so I am quite unimpressed by any argument that this is just a State statute.

KIRBY J: And if there is an issue of principle, if it affects a lot of - we are told it is 140 or whatever it is - people, you know, they are no less important than tax cases, as citizens.

MR RUSKIN: Yes. All that can be said about that is that, as we say in our argument, every interpretation of a statute will, ipso facto, affect lots of people and, of course, it is something to bear in mind but it is really a general principle rather than anything specific to this case. We say this Court looked, for example, at the Transport Accident Act of Victoria which was the Act talked about whether a serious injury had to be very serious or just moderate, and the Court declined to give special leave, and that was a statute which obviously affected thousands and thousands.

McHUGH J: Can I tell you the point that now concerns me. I have to say that, at the moment - although we have not heard full argument on it - it seems to me fairly plain that this section, on its face, applies to these 135A(2)(b) injuries but what I am concerned, as a matter of general principle, is that the explanatory memorandum could not be clearer in saying that the section was not intended to apply to these particular injuries. Now, that does seem to raise an important point of principle as to what extent the Court can go behind the face of the statute to rely on the explanatory memorandum. We visited this in Bolton's Case.

KIRBY J: Bolton v Beane.

McHUGH J: In Beane's Case, about the soldier. But I would like to hear you on that specifically.

MR RUSKIN: Yes, certainly. Your Honours, in that respect, we put in our authorities the recent case of Thompson, which was the case about the breath test and whether you were actually driving, and the point that that raised was this - and this is how we apply it to this case - the primary construction tool is the text and you must be satisfied that any explanation, that is, any explanatory memo or any debate, must be consonant with the text because, otherwise, it is the end of the world as we know it. In other words, you cannot simply say, "Well, the text says something clear, but now we have found an explanatory memo in which they said something different, therefore, we had better mutilate the text to conform with the memorandum."

KIRBY J: The problem with Thompson is, Thompson was a case where the Court thought the text clear but, in case of doubt, went to the Law Reform Commission Report and that indicated that the view of the clarity of the section which appeared on its face was confirmed to be the purpose of the legislature.

MR RUSKIN: Yes, indeed.

KIRBY J: Whereas here, when one goes to the external document, as Justice McHugh has said, it could not be clearer. Experience teaches that the people who draft the explanatory memoranda are usually Parliamentary Counsel's Office and they are the people who have drafted the text of the statute.

MR RUSKIN: We say two things about that.

KIRBY J: Sir Humphrey has got to work on the Minister's speech.

MR RUSKIN: We say two things about that. In the first place, we have to say that the explanatory memo is inconsistent with a plain reading of the text and in order to make them marry, you would have to mutilate the text of the statute in three ways. May we just point that out to the Court? In other words, let us assume that is clear. If the text, in order to marry it, has to be mutilated - to use an unemotional term - then, what we say is you simply cannot do it and the Court of Appeal was right not to. Can we just take you to (1)(a). It talks about:

proceedings to which section 135(1) as in force.....but the hearing of which had not -

been -

commenced -

and -

proceedings commenced on or after 1 December 1992 to recover damages in respect of an injury arising before that date -

and that is this injury, that is a 135A(2)(b) injury. But it goes on:

but does not include proceedings of a kind referred to in a paragraph of section 135(1) -

So, the legislature has gone to the trouble of both including and excluding. What you would have to say is what the legislature has done is deliberately exclude, in terms, a paragraph of 135(1) - they are all the transport accidents, your Honours, about getting injured on the way to work - but has not gone to the trouble of excluding, which it easily could have, 135A(2)(b). So that you would have to read in a further exclusion in circumstances where the legislature has gone to great trouble to exclude a particular sort of injury. That is the first problem. So you would have to change the plain words, then you would have to read something in. But it gets worse. Can we take your Honours to 135B(2). It says:

A worker.....may be, entitled to compensation in respect of an injury arising before 1 December 1992 shall not, in proceedings to which this section applies commenced on or after 30 June 1994, recover any damages in respect of pecuniary loss -

Now, your Honours, the only type of damages one could recover in respect of pecuniary loss before 1 December 1992 is a 135A(2)(b) injury. So, what is it there for? That is the point the Court of Appeal says. The Court of Appeal says it has got no work to do. It is irrelevant.

So, therefore, you have to say - first of all, you have to rewrite (b). You have then to say, pecuniary loss should not be there. We say it could not be clear. So our simple point is this: if one says, "The explanatory memo clashes with the plain text. We would have to completely rewrite the plain text". What do you do? Do you give force to the memo and dump the text? Because this is the obverse of what happened in Robart. In Robart, what the Commission sought to say was, "True enough the plain text is not clear but let us tell you what we wanted to do. Here's our memo and here's our debate. This is what we wanted to do. We wanted to abolish everything after 1 December 1992", and the Court of Appeal of Victoria said, "Well, that is maybe what you wanted to do but the text doesn't conform with it and, therefore, we follow the text." And so that is our real point, that - - -

McHUGH J: Yes, although I have always been in favour of purposive construction of statutes, that reference to explanatory memoranda and Minister's speeches and other documents does make it difficult for the ordinary citizen who ought to be entitled to rely on the terms of the statute as laying down the law without having to undertake a research project to see whether there are materials which contradict the text.

MR RUSKIN: Yes. This Court has said so in cases such as, I think, Catlow which we refer to, and Meeking, and that is that there has to be certainty, and the certainty comes from the text, not from the will of the man who writes the memo. So, we say that the Court should not be satisfied other than that the Court of Appeal was correct. In other words, its construction was correct and there is not sufficient chance, even if special leave was granted, that the Court would find that in the construction it put on the Act that it was wrong, whatever the memo says.

CALLINAN J: That has to be right. Parliament enacts the text. It does not enact the memorandum.

MR RUSKIN: That is what we would say, your Honour, and it really would be the end of the word, as we know it, because people could go round finding what the Minister said about something rather than what the text said.

KIRBY J: Bertrand Russell had a very good comment about end of world as we know it, and I quote it in Steele's Case recently. You might have a look at that when you go back. The end of the world is usually what the next generation finds the beginning of the world.

MR RUSKIN: Thank you, your Honours, those are the matters we would wish to put.

McHUGH J: Thank you, Mr Ruskin. Anything in reply?

MR GORTON: Really, two matters. It was put that section 135B(2) refers to "pecuniary loss or damages" and that must have some meaning. It has a meaning without it being that which the respondent puts on it. "Pecuniary loss or damages", as a term, include the right to recover damages in respect of death claims and death claims were permitted under the earlier matters for injuries. So the basis for saying there is a meaning to be found in 135B(2) is not right.

It has to be remembered that section 135A was one scheme set up. Section 135B is designed to dispose of the former scheme. That is the intention that was there. There is ambiguity, at the least, in the text of 135B and the amendments in 1994. It flows not least from subsection (1A) that I have already referred to. There being ambiguity there, it is proper and appropriate to go and look at the explanatory memorandum, and there can be ambiguity even when the text on first reading and as read by the Court of Appeal is said to be clear.

McHUGH J: Yes. Thank you, Mr Gorton.

There is no sufficient reason to doubt the correctness of the construction of section 135B of the Accident Compensation Act, as amended by section 67 of the Accident Compensation Amendment Act.

It is true that the explanatory memorandum appears to cast doubt on the construction favoured in the Court of Appeal. However, the explanatory memorandum cannot override the clear purpose of the Act as deduced from its own language: see Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514. Accordingly, the application for special leave to appeal is dismissed.

MR RUSKIN: We seek the costs, if the Court pleases.

McHUGH J: Yes. Is there anything you can say against that, Mr Gorton?

MR GORTON: No, your Honour.

McHUGH J: The application for special leave to appeal is dismissed with costs.

The Court will now adjourn to reconstitute.

AT 11.41 AM THE MATTER WAS CONCLUDED