Heli-Muster Pty Ltd v Barlow D2/1998 [1999] HCATrans 290 (13 August 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Darwin No D2 of 1998

B e t w e e n -

HELI-MUSTER PTY LTD

Applicant

and

MITCHELL DAVID McMILLAN BARLOW (by his next friend CHRISTINA BARLOW)

Respondent

Application for special leave to appeal

GLEESON CJ

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON FRIDAY, 13 AUGUST 1999, AT 9.30 AM

Copyright in the High Court of Australia

MR S. WALSH, QC: If the Court pleases, I appear for the appellant. (instructed by Hunt & Hunt)

MR J.B. WATERS, QC: If the Court pleases, I appear for the respondent. (instructed by Bowden Turner & Deane)

GLEESON CJ: Yes, Mr Walsh.

MR WALSH: If the Court pleases, the question which arises in this case is the role of the appellate court in reversing the decision of what is a specialised court, namely the Work Health Court, and where the appeal was limited to a question of law. In the present case, the Northern Territory Supreme Court, in effect, we say, replaced its view of the matter for that of the Work Health Magistrate. The Chief Justice, Chief Justice Martin, had correctly, we say, observed that it was not a case in which an appellate court should interfere with the decision of the specialist court, particularly because it was a question of law. The way in which the Full Court of the Supreme Court dealt with the matter was that it was confronted with two tests and in each case it rejected the factual conclusion of the specialist tribunal on the first test by saying or finding that in fact there was no evidence upon which that conclusion could be reached which was, in our respectful submission, not so.

GLEESON CJ: Mr Walsh, just before you go any further, there is a question of time to be dealt with here, is there not?

MR WALSH: Yes, there is, your Honour, and we also - I was about to, when I articulated the special leave point, remind the Court that we do need an extension of time within which to appeal or seek leave to apply to the Court.

HAYNE J: Why should you have it?

MR WALSH: Your Honours, the affidavit of the instructing solicitor demonstrates that there was in fact no fault on the part of the applicant for special leave and it would seem that the - - -

GLEESON CJ: What do you mean by that, "no fault on the part of the applicant"? Do you mean no fault on the part of Heli-Muster Pty Ltd?

MR WALSH: Yes, your Honour.

GLEESON CJ: We are interested in the conduct of Heli-Muster Pty Ltd, as lawyers, are we not?

MR WALSH: Yes, we are, your Honour, but the point that I make is that if there is a fault on the part of the lawyers we respectfully submit that the Court ought to take into account that that is the position or the fault of the lawyers, not necessarily that of the client. It is the client's interests and the client's rights which of course are paramount and it would seem from the affidavit evidence that is provided to the Court that there was, unfortunately, a litany of delay as a result of the break and the unavailability of counsel to advise on the matter. Now, that is the plain facts of the matter and we cannot shy away from that fact. The facts are clearly articulated in that affidavit;but I would simply put to the - - -

GLEESON CJ: The Rules of the Court do not mean very much if, when it comes to attempting to apply them, somebody can simply say, "Well, yes, the Rules were disregarded but that is the fault of the lawyers not the fault of the client".

MR WALSH: I accept what your Honour is putting to me but there is nothing more I can say, I suppose, with respect to what happened. The fact was that the solicitors had addressed the topic but were unable to obtain opinion from counsel who had been involved in the matter both at first instance, as I understand it, and - - -

GLEESON CJ: Counsel said he was too busy. According to this latest affidavit, as I understand it, in paragraph 12:

On 26 February -

by which time the application was well out of time, counsel said:

he was not able to give the matter any attention for about four weeks -

Yes?

MR WALSH: Yes, your Honour, I can only respond by saying that by that time, of course, the matter was out of time and the Court is left with an application that is later than it should be because of that fact but, nevertheless, one that would have been out of time, in any event, so we still would have needed to seek the Court's indulgence, as we do. But, I suppose the point we make is that it appears that the solicitor was left in an invidious position where the solicitor simply could not obtain advice from counsel and it was appropriate that that counsel give the advice because, as I say, that counsel had been counsel for Heli-Muster both in the Work Health Court and in the appeal before his Honour Chief Justice Martin on appeal to the - - -

HAYNE J: Is the respondent still standing out of the benefit of the award?

MR WALSH: I cannot answer that.

HAYNE J: If the extension is granted it means that the matter is further delayed, the respondent stands out of the benefit of the award further and all because solicitors did not give the matter the attention it perhaps required at the time it required it and did not seek to retain counsel who had time to give it the attention it deserved.

MR WALSH: I can say this that if the indulgence is granted then, of course, the time that is spent initially is the time hearing the application for special leave to appeal. So, that would not mean, at least in the first instance, any greater delay. Of course, if special leave is granted then it is a matter of importance and a matter which the Court considers ought to be the subject of an application.

GLEESON CJ: It may be that the merits of the application for special leave are not unrelated to the application for extension of time. Let me just ask Mr Waters. Do you oppose the application for extension of time?

MR WATERS: Yes, we do.

GLEESON CJ: Thank you. Yes, go ahead, Mr Walsh.

MR WALSH: Yes, your Honour. We do argue that the question of the merits are a factor to be considered in the application and therefore - - -

HAYNE J: Why is this, then, any more than the application of accepted principle to an unusual set of facts?

MR WALSH: We say that the particular question of importance that arises here is whether, in the circumstances where there is an appeal solely on a question of law, that - - -

HAYNE J: And the court disposed of it on the basis of no evidence. Was that a principle that was open to application? Leave aside whether it was correctly applied, is that a principle open to application in such an appeal?

MR WALSH: I understand the force of what your Honour puts to me but I say that in this case it really, on a proper analysis of the Full Court's decision, was not a case of no facts, it was a case of what they ultimately were saying no doubt was a perverse conclusion and - - -

HAYNE J: That, then, is something that depends on the minor premise of the argument, rather than the major premise. It depends on whether, properly analysed, the unusual facts of this case reveal that this man was or was not, what, on his way to his place of employment?

MR WALSH: Workplace, your Honour, yes.

HAYNE J: His workplace.

MR WALSH: Yes.

HAYNE J: What is the point of general application that emerges from that?

MR WALSH: The point of general application, firstly, if I may, as against the background of this particular Act, the wording in the Safety, Rehabilitation and Compensation Act(Cth) is almost identical in terms of it being place of residence and place of work. That is the first point but it is only background. The second point is that in the present case if it is limited to a question of law, the question of whether a perverse result, on the one hand, could be the subject of a successful challenge, as opposed to no facts at all, is an issue of importance. It is an issue of importance in terms of the role of the appellate court and that is the issue which we say - the important issue which arises in this case - against the background of what the Full Court did which was to, we say, in effect, put a label on the conclusion in order to achieve the result, as it were, and I do not say that in a pejorative way, but nevertheless to achieve the results, and against the further way in which the Full Court dealt with the second topic, namely, the workplace issue, by introducing something that had never been argued before, as observed by his Honour Justice Bailey, namely, another definition section which had, as I understand it, never been argued, never been put to the court and which was not really open, on the facts, in any event, namely, this extended definition of the workplace.

So, what the Full Court did was to, in effect, in the first instance, as regards the first limb, say, "Oh, well, there was no evidence at all" when in fact there was, and it really is a question of whether that is a perverse result or not. On the second limb the court had introduced an element that had never been introduced previously and used that as the justification to say, "Oh, well, the Work Health or the specialist court was wrong and that Chief Justice Martin was wrong in saying, `Look you really cannot go beyond the factual findings of the Work Health Court'". So, I suppose, in answer to your Honour Justice Hayne, it is against that background but the particular issue which we say is of importance is the question of the proper role of the appellate court in circumstances where, on the one hand, it is alleged that there were no facts but, on the other hand, the truth of the matter is more likely that it has been asserted that in their opinion it was a perverse result.

Now, that is an important issue from an appellate point of view and it is something that has entertained the lower courts in the past. There are decisions of the New South Wales Court of Appeal where that issue has been agitated but, in our respectful submission, it is an issue which would justify the attention of this Court in the event that special leave was granted, and this is an appropriate vehicle, we argue, because of the, firstly, simplicity of the issue which is before the Court; secondly, the fact that it was in fact a case clearly articulated in terms of facts by the Work Health Magistrate and there were clear findings of facts to justify the conclusion reached; thirdly, that it has been the subject of clear analysis by Chief Justice Martin, so that the issues have been teased out, as it were, and then, of course, the Full Court has provided its decision by, we say, simply replacing its own view for that of the specialist tribunal on questions of fact when it is limited to a question of law. So, in our respectful submission, there is an important issue that arises.

If I may turn very briefly to the appeal book itself to illustrate the points that I make. If you turn to the second question found by the Work Health Magistrate at page 18 of the application book, you will see that at the foot of that page in the final paragraph the Work Health Magistrate said this:

I consider the evidence before me supports the assertion that the worker was travelling to his place of residence that being his room in the accommodation at VRD, preparatory to starting work.

That is Victoria River Downs. So, in other words, there was a clear finding open on the evidence that the worker, the deceased, who was unfortunately murdered on his trip to Victoria River Downs, was going to his place of residence. If that is, if that is a finding of fact that was open, then the Act is not met because he must be travelling to his place of work, not his place of residence.

GLEESON CJ: This issue was dealt with at page 63 in the middle of the page.

MR WALSH: Yes, your Honour. The point that was at point 15, his Honour Justice Bailey was saying that the learned Chief Justice may have overlooked a crucial aspect, but what Justice Bailey was dealing with there was, in our respectful submission, a mere statement of what the position was at the time that the deceased was travelling and interpreting that - - -

HAYNE J: When do you fix his place of residence? Do you fix his place of residence at the time he sets off or his place of residence at the time he would have it when he had completed his journey, had he been able to do so?

MR WALSH: Yes, that was only the first question, of course, namely, what his residence was - whether the first place was his residence. I was only dealing with the second. We do not need to deal with the first, but, dealing with that topic, with the greatest respect, his Honour Justice Bailey has really misinterpreted, we say, with respect, what it is that the learned magistrate was saying. The learned magistrate was not using those words to be indicating some point of time when he was murdered as opposed to beforehand because the learned magistrate analysed before making that statement the question of whether the place that he was leaving was in fact his place of residence and determined that it was not. So, what his Honour Justice Bailey - - -

GLEESON CJ: Yes, but we are not going to grant leave to appeal so that people can come to this Court and argue about the proper interpretation of some expressions by a magistrate.

MR WALSH: No, quite so. We do not raise that as a justification. We are merely answer the fact that his Honour Justice Bailey has, we say, with respect, improperly seized on that statement.

GLEESON CJ: But, that indicates, does it not, this is not a case where the appellate court in the Northern Territory set about disregarding the circumstance that it was limited to dealing with questions of law. The appellate court thought that, having regard to the way the magistrate expressed herself, the case did give rise to a question of law. Now, they may have been right or they may have been wrong in their interpretation of what the magistrate said, but that does not sound like a very fruitful point to argue in this Court.

MR WALSH: No. The focus we put on the point of law, or at least the point of law in the case that arose was a question of law was the second issue. We say that the question of whether he was travelling to his place of residence, as opposed to his workplace, give rise to the important issue because in that case in that instance there was a clear finding by the magistrate. There was an admission in the pleadings that he had his principal home, as it were, at Victoria River Downs. He had been there since June 1991, apart from the time that he was away from his work. So, that is the focus, we say, that gives rise to the special point, not so much the first question.

We say that the second question, namely, whether he was travelling to his workplace or his residence, there was a clearing finding of fact, open on the evidence, that he was travelling to his place of residence and it is that which then gives rise to the Full Court on utilising two mechanisms to say that it should not be followed or the decision should not be upheld: one, no evidence; or, two, introducing the question of the workplace, the extended definition which was never an issue before the courts below. So, in our respectful submission, that does give rise, in our respectful submission, to the very issue which we raise, namely, that the special leave point is whether it should be a situation on appeal on a question of law, no evidence, or, alternatively, might a perverse result justify a decision to allow an appeal on the question of law and the interference by an appellate court?

So, that is the special leave point against the background of the fact that South Australian Act is similar but not identical but the Safety, Rehabilitation and Compensation Act is similar, and, also against the background that in this case there has been a deliberate change by Parliament from a well-traversed expression of journey to employment, on the one hand, as it was previously and previously agitated in this Court in earlier years as against Parliament's decision in this case to use words that are quite different, quite specific and, in our respectful submission, that limit the effect of it. So, it is important issue from the from the point of view of administration of justice in the Northern Territory, namely, because of the number of cases that will be have to be agitated under this legislation and similar legislation, both federally and in the State of South Australia, for example. But I concede that the other States move away from that definition and use definitions similar to the old definition, in some cases, of journey to employment, as it were, which is, of course, well traversed by this Court in previous decisions.

So, if the Court pleases, that is the special leave point and we say that if the Court finds that there is merit in that special leave point then there is justification for extending the time within which to seek special leave to appeal to this Court. If the Court pleases.

GLEESON CJ: Thank you, Mr Walsh. We do not need to hear you, Mr Waters.

This application for special leave to appeal against a decision of the Supreme Court of the Northern Territory was not made within time. An extension of time was sought. The explanation that has been advanced for the failure to observe the time limits prescribed by the rules is not satisfactory. Moreover, the grounds advanced in support of the granting of special leave are not persuasive. The decision of the court below involved the application of clear principles to the facts and circumstances of a particular case and is not a suitable vehicle for the resolution of any issue of general importance. Time should not be extended. The application should be dismissed. Do you resist an order for costs?

MR WALSH: No, I do not, your Honour.

GLEESON CJ: The applicant must pay the respondent's costs of the application.

AT 9.50 AM THE MATTER WAS CONCLUDED