State of New South Wales v Taylor S100/1999 [2000] HCATrans 112 (17 March 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S100 of 1999

B e t w e e n -

STATE OF NEW SOUTH WALES

Applicant

and

BRENNAN TAYLOR

Respondent

Application for special leave to appeal

GLEESON CJ

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 17 MARCH 2000, AT 11.12 AM

Copyright in the High Court of Australia

MR L. KING, SC: May it please the Court, I appear with my learned friend, MR R.A. STANTON, for the applicant. (instructed by P.W. Turk & Associates)

MR A.J. LESLIE, QC: If the Court pleases, I appear with my learned friend, MR J.O. ANDERSON, for the respondent. (instructed by Steve Masselos & Co)

GLEESON CJ: Yes, Mr King.

MR KING: Your Honour, this application concerns a point of construction of section 151A(5) of the Workers Compensation Act, part of the scheme introduced by the 1989 amendments. I hope it is a sufficiently broad and succinct statement of the facts as a background to say that the respondent had an injury to his back in the course of his employment on 19 October 1992.

KIRBY J: We have read all that, I think, and may I compliment you on your application in writing for special leave. It was extremely clear and conceptual and explained the issue very clearly.

MR KING: Your Honour, I have come to regard that sort of compliment as the kiss of death but I will carry on. To go straight to the special leave importance aspect, your Honours, this is a provision which is central to the working of the alternative strands of compensation for employment injuries. It has got a near equivalent in Queensland. The Queensland equivalent has this point of difference, that the decision-maker who decides whether an election can be set aside or leave to revoke it can be given is, in Queensland, a public servant and, in our submission, it is all the more important, therefore, that this Court take the opportunity of clarifying the clear division which has emerged in the New South Wales Court of Appeal.

GLEESON CJ: Just a moment. As I understand it, after a series of cases involving a continuation of dissent by Mr Justice Handley, the New South Wales Court of Appeal has reached a clear view on this subject.

MR KING: A view, your Honour. "Clear" - - -

GLEESON CJ: Well, a settled view in the Court of Appeal. What you seem to be inviting us to do is unsettle the law.

MR KING: What I am inviting the Court to do is to see whether, indeed, it is fair to say that the law is settled or clear. May submission is it is attended by significant doubt and it is only necessary to trace the course of decision which I will shortly do, if I may. Working backwards, for example, in this matter, as distinct from the earlier one of Francis v Dunlop, Justice Handley maintained his dissent in a considered fashion. He said he had thought about coming into the fold, as it were, but he decided to maintain his dissent. That is a significant matter, with respect.

Secondly, Acting Justice Sheppard said that he regarded the competing views that had been expressed, which were different to that of Justice Priestley in the earlier case and Justice Handley in both cases, as persuasive. He acknowledged the force of the divergent views.

KIRBY J: How could you not do so? I mean, there is a divergence and I thought we have really surrendered the view that there is but one construction to statutes. Statutes sometimes are quite genuine and powerfully expressed and persuasive divergencies. This is such a case. Justice Handley's arguments are very powerfully put.

MR KING: It is not just Justice Handley, with respect, it is the multiplicity of divergence. There is no unanimity within the judgments in each case which reach the same result and with all respect to - - -

KIRBY J: Would you develop that because that is an aspect I did not quite understand?

MR KING: I will do that. Again, working backwards, Acting Justice Sheppard said, clearly, that he was influenced by the old tenet that workers compensation legislation is beneficial or liberal in character.

KIRBY J: Well, you say this is a non-beneficial - - -

MR KING: This bit of it is very definitely not. That, with all respect to his Honour, is a very grave misconception and taints his reasoning with error. It is a factor which tipped him, as it were, into the camp that we contend against. But, just briefly, your Honours, to take you through it, in the earlier case of Francis v Dunlop - I believe we have sent up the Butterworths' print of that - Mr Justice Priestley agreed with Mr Acting Justice Fitzgerald, as he then was, subject - this is page 1 - his Honour says he agrees, subject to his own view. His own view which obviously, in his own words, clearly influenced him in that agreement was to the effect that the worker must be convinced - convinced in the sense of accepting it is true that a specific or particular deterioration will occur rather than some deterioration of some substance.

KIRBY J: Is that not that the essence of the point between Justice Handley, on the one hand, and the other members that you have to, as it were, identify the particular deterioration and that if that is not in the mind of the worker when he or she elects then the election is not fatal?

MR KING: That is one of the differences between - - -

KIRBY J: Given the seriousness that attaches to election, why is that not an open interpretation? It has, after all, appealed to the majority in the Court of Appeal.

KIRBY J: With respect, it is not correct to say that it really appealed to anybody other than Justice Giles. I will leave aside - - -

KIRBY J: Just like Justice Priestley. I may be wrong. It does seems to be what Justice Priestley is getting at here.

MR KING: But he is agreeing. The substance of what Justice Priestley said constitutes an agreement with Acting Justice Fitzgerald and that feeds me, with respect, straight into what he said at page 8 of Butterworths' print, or perhaps it is easier to go to the application book because the specific passage from Acting Justice Fitzgerald's decision is set out at page 47 in the reasons of Justice Giles. You will see from about line 12 that his Honour formulates a question:

`Would a reasonable person with the information available to the appellant when he elected to accept permanent loss compensation on 30 June 1993 have then had any cause to believe that his injury in respect of which such compensation was accepted would cause a further material deterioration -

Now, your Honours, it is critical there that this is subsection (c). He does not use the wording that Justice Giles ultimately adopted of "the particular" or "the precise deterioration". He uses the same language as you get in the earlier subsection laying down the conditions for the revocation of an election, namely, "a material deterioration". Justice Giles goes on to disagree with Justice Handley by reference to some "impermissible hindsight" at page 51 of the book, the reasons of Justice Giles. After setting out at the head of that page and the foot of preceding page what Justice Handley had said, he goes on to say at about 29 onwards:

Part of finding the distinction between "would" and "might" was unhelpful was "because the fact has occurred". In my respectful opinion, this involves impermissible hindsight.

There is just no way that this section can work without a degree of hindsight. Justice Giles, himself, extracts the section in full at page 32 of the book and one starts at line 25 with subsection (b). You start with the fact that there has been some relevant deterioration. Then in subsection (c), you have to ask whether "there was no reasonable cause to believe that" that would happen. It is just impossible to construe this provision, applying it to any set of facts which are said to enliven the right to revoke the election without a degree of hindsight, yet Justice Giles departs from Justice Handley significantly on the basis that there is an impermissible element of hindsight in his reasoning.

KIRBY J: You cannot forget the adjective. It is not "hindsight" his Honour is objecting to, it is "impermissible burden of hindsight". That is what he says.

MR KING: With respect, if some hindsight is necessary, where is the degree of impermissibility? When you move on, you are considering whether there is no reasonable - it is stated in the negative - cause to believe that something would happen.

KIRBY J: But the verb is "was" not "would" or "might"; that "there was no reasonable cause to believe" so it is, as it were, positing hindsight at the particular moment and asking whether at that moment, in fact, there was, not whether it might or could or would, but was, so, it is trying to get into the mind of the worker at that time.

MR KING: I do not know that I disagree but I would have to supply some additional context to what has fallen from your Honour and that comes from the background, subsection (b). Now, you are not considering a vacuum in (c). Your Honours, those are the points. What you have got here is open division between Justice Handley and the others and significant cracks in the others and that, in my submission, indicates a real doubt about the correctness of the majority decisions and on that basis this Court should clarify it.

GLEESON CJ: Thank you, Mr King. Yes, Mr Leslie.

MR LESLIE: If the Court pleases, I submit that the reasoning of the majority comes to a clear view that probabilities are relevant, not possibilities. Probabilities are the relevant criterion. That appears from the majority judgment. I submit that the majority judgment is upon a local statute. The similarity in the Queensland legislation is illusory in as much as the Queensland legislation is applicable only to minor injury, non-certificated injury, whereas the New South Wales provision is applicable across the board.

KIRBY J: I have to tell you, I do not think that is a very heavy, if any, consideration, because this Court sits on appeal in every part of the Commonwealth and we do not exclude appeals simply because it involves a matter of local statute. After all, this is a statute and on this point turn, one would think, hundreds of cases and millions of dollars, so that just because it is a local New South Wales statute does not put it out of court, as far as I am concerned.

MR LESLIE: If your Honour pleases. There is a further difference in as much as the Queensland provision refers to "no reason to believe" whereas the New South Wales provision talks about "no reasonable cause to believe". The use of the word "cause" might suggest causation which might suggest probability which reflects the majority opinion. In my respectful submission, the majority opinion was a legitimate opinion and ought, in the circumstances, to prevail, there being no sufficient doubt about the judgment under consideration.

GLEESON CJ: Thank you, Mr Leslie. Yes, Mr King.

MR KING: I have only one thing to say in reply to that, your Honour, is that "no reason to believe" and "no reasonable cause to believe" are, for all practical purposes, coincidental.

GLEESON CJ: Do you accept the proposition of Mr Leslie that the point of departure between the majority and the minority really is whether you address probabilities or possibilities?

MR KING: No, with respect. The point of departure, if one takes Justice Priestley, is there is a certainty posited by him. What Justice Giles, who I would accept for practical purposes, does constitute the majority at the moment, requires a crystal ball to be in the hands of the objective person making the same sort of judgment as the worker makes because he confines probability not to a range of results. He says, "It must be known as a probability that a particular end result, a precise condition would come about." That is quite contrary to the general run of medical conditions and, indeed, the general run of medical evidence. It really does require a degree of foresight which is quite impractical. Justice Handley, with respect to him, took all this up. At page 29 of the book he points out that deterioration can be in a range - - -

KIRBY J: But is not the problem for you, and this, I think, is brought out in the majority opinions, that instead of saying there was a likelihood of further deterioration, the statute addresses itself to whether there was reasonable cause to believe, so that it is not quite focused on what was the objective fact, but on what was the reasonable basis of the belief of a person at that time and that tends to take it back to the specificities of the particular condition and what was known at the time of the election, which is not unreasonable, given the very radical consequences that flow from the election.

MR KING: It is almost a situation in which life was not meant to be easy. The radical consequences are made radical because it is meant to be difficult and this is meant to have real teeth and the teeth should not been pulled in the way that they have been, with respect. For example, Justice Giles, himself, if one goes to page 44 of the book at about 10.

The broad purpose of para (c) as part of the answer is clear enough. No doubt to exclude further deterioration which the worker should have taken into account when making his initial election, para (c) requires -

et cetera. He goes on to say that that obvious "broad purpose", which is very similar to limitation statutes which, as a ground for an extension, advance one material fact as being that it was not possible to know how bad the condition the was going to - how it was to become. There is a broad similarity there, although I agree that so far as the New South Wales Limitation Act is concerned the test has been said to be subjective, whereas we are concerned here with an objective test, but, nonetheless, the thrust of it is much the same.

Now, if one were to correct an error that Justice Giles obviously makes there and to paraphrase it along the lines of Justice Handley you would, in my submission, have the correct test. His Honour says at line 16:

which the worker should have taken into account.

With all respect to his Honour, he has probably tripped over his words there. It is not the worker, it is an objective alter ego of the worker. But, if one were to paraphrase that and say, "No doubt to exclude further deterioration which an objective observer with the information available to the worker and to his doctors thought was within a genuinely possible range", you would have exactly the situation taken up Justice Handley. You would have the situation, to a large extent, taken up by Acting Justice Fitzgerald when he talks about "a deterioration" for the purposes of sub-section (c) rather than some specific deterioration and you would have a construction which, to use a dreadful phrase, is a real life construction, it accords with what happens when one listens to medical evidence. It is workable at a pragmatic level. Your Honours, that is all I need to say in reply.

GLEESON CJ: In this matter there will be a grant of special leave to appeal.

AT 11.32 AM THE MATTER WAS CONCLUDED