Australian Postal Corporation v Burch M76/1998 [1999] HCATrans 9 (12 February 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M76 of 1998

B e t w e e n -

AUSTRALIAN POSTAL CORPORATION

Applicant

and

SIMON JOHN BURCH

Respondent

Application for special leave to appeal

GAUDRON J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 FEBRUARY 1999, AT 12.15 PM

Copyright in the High Court of Australia

MR B.W. WALKER, SC: May it please your Honours, I appear with my learned friend, MR P.J. HANKS, for the applicant. (instructed by Sparke Helmore)

MR R.P. GORTON, QC: If your Honours please, I appear with my learned friend, MS A.E. MacTIERNAN, for the respondent. (instructed by Harry Nowicki & Co)

MR D.M.J. BENNETT, QC, Solicitor-General for the Commonwealth: May it please the Court, I seek leave to intervene on behalf of the Commonwealth of Australia, with my learned friend, MR T.M. HOWE. (instructed by the Australian Government Solicitor)

GAUDRON J: Is that opposed?

MR WALKER: No.

MR GORTON: Yes, your Honour, but not with any great - - -

GAUDRON J: Not with any vigour.

MR GORTON: It is really only one argument which ought to be presented. It should not extend the propositions that are put. The grounds are substantially the same as set out in the arguments that have been presented to us.

GAUDRON J: Yes, thank you. Well, yes, on the assumption that you can share the time, the 20 minutes, there will be no difficulty.

MR BENNETT: If your Honour pleases.

MR WALKER: I think I will need to rely upon my learned friend to give his equivalent of an orange light then, your Honour. I may not be stoppable otherwise.

Your Honours, special leave should be granted in a case which might, at first blush, look like a matter of statutory interpretation applying - - -

GAUDRON J: It looks a bit more like findings of fact, to me.

MR WALKER: If it does, that is another obstacle I have to overcome. May I come back to the question of fact. The ordinary canons of interpretation say, of course, and this Court has said it sufficiently often for my invitation for you to repeat it to be unattractive, that you should interpret the statute in question, and to use authorities on other statutes which have different wording is the slippery slope to error. That is not new and would not be a special leave point.

What is important in this case is, first, that there are manifestly fiscal consequences that might not on its own be attractive. In other words, the case concerns money and important sums of money. But, in our submission, there is a transcendent point raised in relation to the way in which the Full Court has dealt with the obvious intent of the latest form of this statute, of this statutory scheme. Because the critical point is that where once there was an overlap, a designed overlap, held by this Court in relation to a number of different statutes between the comprehensive concept of injury and the special category of disease which needed a more overt nexus with the workplace demonstrated, in this case the Parliament has very clearly, and in a way which, in our submission, demonstrates absurdity in the Full Court's approach, required the two concepts to be kept distinct.

Where, in Zickar's Case, this Court was able to observe that words of inclusion do not work exclusion, Parliament has in this statute said quite differently by the words of exclusion in the section 4 definition.

GAUDRON J: Assume that be the case, what were the findings?

MR WALKER: The findings were that what happened would have been, under another scheme, construed as the Court has construed other schemes.

GAUDRON J: Yes, the factual findings.

MR WALKER: The factual findings, clearly enough, include the sudden event, the stroke.

GAUDRON J: Without relating it to any pre-existing condition.

MR WALKER: It is not a matter of "without relating it", your Honour. It clearly arises because of the pre-existing condition. A body does not suffer that kind of internal injury except by reason of the state it is in. That is self evident.

GAUDRON J: It was not related to the heart condition, was it?

MR WALKER: No, your Honour.

GAUDRON J: Is there evidence that a stroke simply cannot occur without there being some underlying medical condition?

MR WALKER: There is not evidence which says that strokes cannot be idiopathic, to use the fancy word for inexplicable, no, there is not.

GAUDRON J: Does that not put an end to your submissions?

MR WALKER: Only if the question is determined without looking at the ordinary English of what we would say is the two now mutually exclusive categories in the definition. In other words, if, as a matter of ordinary English - - -

GAUDRON J: But what I am putting to you is that at the end of the day the factual findings are important to a determination of what is in issue and the factual findings to support your case really are not there.

MR WALKER: Critically, I accept, your Honour. The factual findings are of a familiar kind which do not give - precisely in application book 32, for example, we have in very familiar terms a finding that the stroke did not occur as a result of disease; rather what is called "injury simpliciter". The context which has given rise to that language, which is the context expressly referred to by the tribunal in that very sentence, is the context of case law about other statutory schemes. The case law about other statutory schemes includes the very familiar method by which, for example, the rupture of an aneurism is an injury, notwithstanding the aneurism is a disease. A question arises, of course, as to whether that means the rupture is not also, as a matter of ordinary English, part of the disease - one of the events in the course of the disease.

In our submission, the ratio of those decisions over many years shows that the courts have rejected the notion that there was a dichotomy: it is either a disease or an injury. Rather, they said, these schemes permit one to be compensated for an injury if you satisfy the court it is an injury, notwithstanding it is also part of a disease. That is why it is significant and why this case deserves special leave because Parliament moved on from that. But the Full Court has simply imported, contrary to well-established canons, that is all the more reason why there should be interference by this Court, to say that they have not achieved the mutual exclusivity upon which my argument depends.

So, in answer to your Honour Justice Gaudron's question, the difficulty, of course, is that whereas the stroke here can, as a matter of ordinary English, be seen as both injury and disease, what the statute required is that you had to choose between one or the other and there it is that the words in parentheses, which are at the heart of this, operate to put to one side and to render absurd in their application the notion that you can have both an injury and a disease under this scheme.

GAUDRON J: Well, you say it can be seen as an injury and a disease but that is your assertion. It may be capable of being seen as a disease if it can be related to some definite underlying condition, but it was not. That seems to me to be your problem.

MR WALKER: It is a problem. Whether it is a mere matter of assertion when one is talking about the meaning of words is another matter though, your Honour.

GAUDRON J: I have never heard a stroke referred to as a disease in isolation from an underlying condition.

MR WALKER: But when one looks at the definition of "disease" it would be difficult to say that this is not an ailment of sudden onset. That, in our submission, puts paid to the notion that this cannot also be a disease. Once we make the step which is required by parliamentary intention - - -

GAUDRON J: You have to go to not only "can also be a disease" to "is also a disease".

MR WALKER: Yes. The first step has to be "can" because if I cannot get there, then I have nothing to fly with. But once I get to it can be, and the statute here requires I get to that step, the question then is if it is disease as well as putatively injury, in ordinary English, as then driven by the statutory definitions, may it be both, so that if the worker shows injury, it is not to the point, he shows disease and he needs show no more nexus than the temporal connection? The answer to that is, unlike all the other schemes considered in the other case law, which has clearly driven the decisions below, and inappropriately so, this is a statutory scheme which, by the words in parentheses, marks out the territory of "injury" and "disease" as defined, as mutually exclusive, in which case, in order to approach the test which your Honour Justice Gaudron has, with great respect, correctly identified as one depending on matters of fact in every individual case, you first ask is it a disease? Why do I say that is the priority of questions? Because if it is a disease it cannot be - Parliament has said it must not be considered to be an injury. None of the schemes before had that simple approach, carving out of "injury", at the outset, something called a disease.

All the case law relied upon accepted that mutual exclusivity was wrong, that it was not to the point that something be called a disease. If it could be called an injury the worker was home with the lower nexus. That was reversed. In our submission, the vice of the Full Court's conclusion and reasoning is that no recognition was given to the extremely express, plainly overt, attempt of Parliament to change the approach to consequences of diseases or consequences of a physical condition which is either idiopathic or autogenous from being an injury where only temporal connection mattered to being a disease where something more by way of causal contribution was required.

Now, that, in our submission, is an error of great import because it cuts at the heart of what was the distinctive feature of the statutory scheme. This Court, in our submission, ought not leave it in what would otherwise be a very orthodox way for Parliament to correct what the government perceives to be an error. Because, here, in our submission, there is a very plain and inappropriate departure from the distinctive features of the statutory scheme compelled by the wording of the statute.

For those reasons, in our submission, there ought to be grant of special leave for reasons of the relations between the proper approach to interpreting a statute and the highly particular way in which this statute has sought to dealt with an age-old policy question in this area, quite apart from the financial matters which I apprehend my learned friend, the Solicitor, will refer to.

GAUDRON J: Thank you. Yes, Mr Solicitor.

MR BENNETT: If the Court pleases. Your Honours, the only real bar that exists, we would submit, to the granting of special leave is the issue of fact as to whether the question of disease arises.

GAUDRON J: Well, why should not the matter be dealt with by the Federal Court in any event? There is no prior decision of this Court on this particular definition. Why is it a matter that would warrant the attention of this Court?

MR BENNETT: Because, your Honour, Federal Court judges have differed on it, although most have favoured the view taken by the appellants in this case. That is the first matter.

GAUDRON J: This is a relatively new definition, is it not, in the history of things?

MR BENNETT: Yes, your Honour.

GAUDRON J: How many decisions of the Full Federal Court are there on it?

MR BENNETT: It is discussed in Van Reesch and in Whillock and this one. There were three Full Court and - - -

GAUDRON J: Are they inconsistent?

MR BENNETT: Yes, your Honour, yes, we would say they are. That is dealt with in paragraph 3.17 of our submissions. But, your Honour, it is more than that, and if I could just say this: The federal Act has a similar structure, we would submit, to the previous federal Act and to the federal Act before that, going right back before the 1971 Compensation Act 1988 , back to the 1948 Commonwealth Employees' Compensation Act. What we submit is, this Court has considered that Act in Ockenden's Case? and in Kavanagh's Case and in Hornsby's Case and the effect of those cases was to say exactly what we say in this case, that there is a division. There is exclusivity between "disease" and "injury" and that if something is a disease, it is excluded from injury. We would seek to show that that has been carried forward in the definitions and unlike the Victorian Act and the New South Wales Act which have led to different results for the reasons given by this Court in Zickar, we submit that exclusivity means that in a case of this sort one simply cannot establish that there is an injury.

GAUDRON J: You say that, again, but if you cannot point to some underlying medical condition, surely you can.

MR BENNETT: Your Honour, here there is an underlying condition.

GAUDRON J: Yes. No causative one.

MR BENNETT: Yes. Well, your Honour, may I just take your Honour to page 32 because there is one sentence which has been taken, we would respectfully submit, a little out of context. Your Honours see in paragraph 101 they refer to the underlying condition, the cardiomyopathy, and there is a discussion of that. They say at 102:

I am further satisfied that the disease was not such on the 29 September 1994 that, as a matter of inevitability, Mr Burch would experience complications.

Then there is a discussion about protein C deficiencies and:

the great majority of cases.....involved a dichotomy in terms of medical opinions.

And so on. And then he says:

I find that on 29 September 1994 Mr Burch experienced a sudden disturbance of his physiological state, being the occlusion of his right middle cerebral artery, which resulted in a stroke. The stroke, which has given rise to a degree of incapacity, did not occur as a result of disease.

Now, your Honours, what that sentence means in the context is one of two things: either it did not occur as a matter of inevitability as a result of disease, which is what was said two paragraphs previously, or it is in the context of saying, as a matter of law it was not a matter of disease as defined because of the words following the definition of "disease". Then he goes on with the conclusion of law:

rather, it was an injury in the primary sense -

And that is what seems to have been the view taken in the Full Court, that view of it. Indeed, also by Justice Northrop, because both considered in some detail the questions of law which we seek to agitate, and determined them, as I say, in a manner adverse to us.

If your Honours go to page 62, your Honours will see the way that passage is interpreted by the Full Court because they say, at line 5:

Thus an employee seeking compensation, like Mr Burch, will naturally enough try first to show that he or she has suffered an injury (in the ordinary sense) because it will only be necessary then to establish that the injury arose in the course of employment. Such a claimant may, as an alternative, again like Mr Burch, seek to show that if what was suffered was not an injury in the ordinary sense, then it was a disease in the ordinary sense, and that there was contribution to a material degree by employment to that disease. This Mr Burch also attempted to do. He gave evidence -

et cetera. But because he won on the first issue, it was not necessary for the tribunal to reach any conclusion as to this alternative claim. What we submit is the tribunal has not considered the question whether there was a disease in the general sense of the word, that is "disease" ignoring the specific workplace relation requirement, in order to see whether that takes it out of the definition of "injury". That issue was never considered by the tribunal and both his Honour Justice Northrop and the Full Court did consider the issue of law in relation to that but not the issue of fact.

It is not a matter that can be solved by simple amendment because with compensation legislation of this type, of course many claims involve retrospectivity and facts going back some years. Our evidence estimates a liability on the Commonwealth overall of something like $70 million if the proposition set out by the Full Court as a matter of law is correct, plus the $7 million per year continuing from then, plus possibly, if it is extended to the military context, further claims in that area.

Your Honours, it is a matter, we would submit, of great importance. Zickar was considered important enough to justify an appeal to this Court.

GAUDRON J: Zickar was a situation in which decision of - it was a case in which previous decisions of this Court were called into question. That is not the situation in this case.

MR BENNETT: No, your Honour. We say that decisions of this Court have been disregarded.

GAUDRON J: Prima facie, one would have thought that this is exactly the sort of question that should remain with the Federal Court; should not warrant this Court's attention. I speak for myself on that, I think.

CALLINAN J: With respect to her Honour, that is not my view.

MR BENNETT: The Federal Court has differed on it. Justice Evatt has supported us. The Full Court in Whillock with Justices Smithers and St John have supported us, and a different view was taken in Van Reesch and Justice Northrop in all three cases has taken the other view, and the Full Court in this case has. We would submit, in that situation of division, with the amount involved - it is a very short point of statutory construction - and we rely on the fact that, we would say, the result is inconsistent with Ockenden and Hornsby and the approach taken in those cases. For those reasons, we submit, this is a case in which there should be a grant of special leave. May it please the Court.

GAUDRON J: Thank you, Mr Solicitor. We need not trouble you, Mr Gorton.

MR GORTON: If the Court pleases.

GAUDRON J: We are of the view that this matter is not a suitable vehicle for the elucidation of the definition of "injury" in section 4(1) of the Safety, Rehabilitation and Compensation Act (Cth).

Do you have an application?

MR GORTON: I ask for an order for costs, your Honour.

GAUDRON J: Against whom? Against both. I would be inclined to grant it against both.

MR GORTON: Yes, against both, your Honour.

MR BENNETT: I would submit it is not normal to make an order for costs against an intervener who has not added in any way to the costs of the proceedings.

GAUDRON J: Why not? You have played a part in them.

CALLINAN J: It is very unusual, is it not, for the Commonwealth to intervene on a special leave application?

MR BENNETT: It is, your Honour, but the normal practice in relation to interveners is that orders for costs are only made against them where their intervention actually increases costs.

GAUDRON J: But you have an interest in this, a very substantial interest. You have come along, it is a special leave application, it is a new proceeding, why not 50 per cent against the Australian Postal Corporation and 50 per cent against the Commonwealth.

CALLINAN J: And you were speaking for the Defence Forces as well, no doubt, as other Commonwealth organisations or emanations.

MR BENNETT: Your Honour, I am concerned with the general proposition that when intervention takes place it does not normally put one in the position where one is exposed - - -

GAUDRON J: That is in the case of appeals proper and constitutional matters. This is just a special leave application.

MR BENNETT: Your Honour, I have put the argument.

GAUDRON J: There will be an order for costs as to 50 per cent against Australian Postal Corporation and 50 per cent against the Commonwealth.

AT 12.39 PM THE MATTER WAS CONCLUDED