Victorian WorkCover Authority v Commonwealth of Australia [2003] HCATrans 323 (25 August 2003)

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Victorian WorkCover Authority v Commonwealth of Australia [2003] HCATrans 323 (25 August 2003)

Last Updated: 2 September 2003

[2003] HCATrans 323

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M68 of 2003

B e t w e e n -

VICTORIAN WORKCOVER AUTHORITY

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

Chamber summonses

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 25 AUGUST 2003, AT 9.30 AM

Copyright in the High Court of Australia

MR D.F.R. BEACH, SC: If the Court pleases, I appear with my learned friend, MR M.F. WHEELAHAN, for the plaintiff. (instructed by Wisewoulds)

MR S.G.E. McLEISH: If the Court pleases, I appear for the defendant. (instructed by Phillips Fox)

HIS HONOUR: Should I hear from you first, Mr Beach?

MR BEACH: Yes, your Honour. Your Honour, there are two issues before the Court this morning. One relates to an application by my learned friend to amend his defence, which is not opposed, subject to the usual order for costs thrown away. The second relates to where the proceedings should be remitted to. We say the County Court - - -

HIS HONOUR: Yes. Why?

MR BEACH: Because, your Honour, there is already a proceeding on foot in the County Court in respect of which there have been directions hearings. There have been orders made in respect of categorised discovery.

HIS HONOUR: There is a fight on about whether the County Court has jurisdiction in that action, is there not?

MR BEACH: Yes, there is, your Honour, and we say - - -

HIS HONOUR: But what live issue in this action would be common to the proceedings now pending in the County Court?

MR BEACH: The whole of the question of liability, your Honour, the section 138 cause of action.

HIS HONOUR: Yes, but it is your case in this Court, is it not, that there was an accident giving rise to compensable obligations?

MR BEACH: Yes, it is, your Honour. In a nutshell, your Honour, what we say is that to remit this to the Supreme Court will leave on foot two proceedings covering the same subject matter which would then force further appearances in the County Court to either decide whether those proceedings should be dismissed or uplifted or some other step taken in respect of them. We say that is wasteful and - - -

HIS HONOUR: They could be uplifted, could they not?

MR BEACH: We would say they could, your Honour. There might be a fight about that though.

HIS HONOUR: It does strike me that we have here a dispute between two institutional litigants in which there is buried as far as the parties can bury it a real live issue that needs determination, is there not?

MR BEACH: Yes, there is, your Honour.

HIS HONOUR: Why cannot we get on and determine the issue and why is that not an issue better determined in the Supreme Court, where it can go from thence to the Court of Appeal and perhaps onwards from there?

MR BEACH: Your Honour, equally it can go from the County Court from this Court.

HIS HONOUR: No doubt, but the issue is one, is it not, of general application?

MR BEACH: Yes, it is an issue of general application.

HIS HONOUR: It is not, therefore, a fight about $38,000. This is a fight about a point of perfectly general application to the administration of the Act.

MR BEACH: It certainly is, your Honour.

HIS HONOUR: It astonishes me that the Authority thinks that it is appropriate that such issues should be determined in the County Court.

MR BEACH: Your Honour, the Authority is concerned not to waste costs and a great deal of costs and effort will be wasted if the Commonwealth continues to take the point that they can summarily - - -

HIS HONOUR: Turn the light on over the jury box, Mr Beach. Yes.

MR BEACH: - - - thank you, your Honour – if they can summarily dismiss or seek to continue to summarily dismiss and have applications ad nauseam in the County Court which are, as your Honour has said, far, far removed from the points which we all want to have determined. Your Honour will have seen from exhibit DJC-1 that we proposed at one stage remittal to the Supreme Court provided that the costs of the County Court proceeding - - -

HIS HONOUR: Which made me rather think that this fight was a fight about costs, Mr Beach, and that is a thoroughly uncharitable thought to have on a Monday morning at 9.30.

MR BEACH: Well, your Honour, it may be uncharitable but there may be a lot in it.

HIS HONOUR: Well, really, let us get on with it and let us fight the issue.

MR BEACH: Well, that is what we say.

HIS HONOUR: The real issue is an issue of law. It is not an issue of compensation for injury, is it? It is a point about a question of law.

MR BEACH: Entirely so, your Honour.

HIS HONOUR: Apt for the Supreme Court, I would have thought, Mr Beach, but not apt for the County Court with its undoubtedly deep experience in matters of compensation.

MR BEACH: Well, all we would then say – if your Honour was to take that view that either by direction, or perhaps extracting an undertaking from our learned friends, that the County Court proceeding be allowed to be uplifted and consolidated with the High Court proceeding if it is to be remitted to the Supreme Court. We just do not want to keep having two cases in two different courts and keep going back and facing sterile strike-out applications which are - - -

HIS HONOUR: A strike-out application seems to involve, perhaps turn on, the application of 38(d) of the Judiciary Act, does it not?

MR BEACH: It does, your Honour, yes.

HIS HONOUR: To say in this Court that such fights about the exclusive jurisdiction of this Court are sterile and arid is an interesting row to have to hoe, I would have thought, Mr Beach.

MR BEACH: I would only say this, your Honour, it is, with respect, in the context of this case where nothing will turn on the outcome.

HIS HONOUR: Yes.

MR BEACH: So if your Honour is minded to remit to the Supreme Court, we would seek, either by direction or undertaking, a course which would allow the County Court proceeding to be uplifted without further - - -

HIS HONOUR: Does it have to come up? Can it simply moulder away in the County Court?

MR BEACH: Well, it could moulder away in the County Court, your Honour, but provided no one seeks to relist it for the purpose of continuing to pursue the interesting 38(d) - - -

HIS HONOUR: I understand that, but can the issue sufficiently arise in the context of the present proceeding without having the existing County Court proceeding with it?

MR BEACH: Yes, it can, your Honour.

HIS HONOUR: It seemed to me it could.

MR BEACH: It certainly can. Your Honour will have seen from DJC-1 that that was the proposal, that we just let it mould away and have the real issues, as your Honour calls them, determined in the Supreme Court where, if our learned friends are unhappy, no doubt there will be an excursion taken further.

HIS HONOUR: We will see it eventually, Mr Beach.

MR BEACH: Indeed, your Honour. My learned junior reminds me, of course, that there is a rule in the Supreme Court that if you do not recover half of the County Court jurisdictional limit there are costs penalties on a plaintiff, and we are nowhere near half the County Court - - -

HIS HONOUR: I understand that, but also I have seen actions in the Supreme Court fought over $20 in which Supreme Court costs have been ordered because it is apparent that it is a test case. As I say, it seems to me that the issues at stake here are much, much more valuable than $38,000.

MR BEACH: I simply raised that, your Honour, because of course we do not, at the end of the day, want to be faced with an application or a submission that we only received County Court costs and we somehow owe them costs because all we recovered was $38,000.

HIS HONOUR: Yes. You might be uncharitable at that point to draw attention to the fact that it was they who sought remitter to the Supreme Court. That would be an uncharitable move no doubt, Mr Beach, but not beyond you, I suspect.

MR BEACH: No, certainly not beyond me, your Honour, but if I could lay the issue to rest here and now, I would seek to do so. If your Honour pleases.

HIS HONOUR: Yes, thank you, Mr Beach. Mr McLeish, what leave do you want to amend your defence? In what terms do you seek the - - -

MR McLEISH: Your Honour, I do have a set of proposed minutes of orders, if that would assist.

HIS HONOUR: Yes. Has Mr Beach seen them?

MR McLEISH: Mr Beach has not seen them in this form. They essentially reproduce the - - -

HIS HONOUR: There are times, Mr McLeish, when I long to mention to counsel that the telephone exists and the lifts in Owen Dixon West still do operate occasionally.

MR McLEISH: Yes, I accept that, your Honour.

HIS HONOUR: Yes.

MR McLEISH: They reflect the form of the summons except for, I think, the first order which I think puts a time limit of 14 days on the amendment of the defence. So I think my learned friend has seen them in substance.

HIS HONOUR: Yes. Now, you do not here, do you, provide for costs thrown away?

MR McLEISH: No, that is true, your Honour.

HIS HONOUR: That should be, should it not?

MR McLEISH: That should if, indeed, there are such costs, which there may be.

HIS HONOUR: No doubt. Now, Mr McLeish, Mr Beach says I should exact conditions from you about what is to happen with the existing County Court action. What do you say is to happen to the existing County Court action?

MR McLEISH: Your Honour, I do not have instructions as to what should happen, but my submission as to what should happen is that it ought to be left to – I hesitate to use the term “moulder”, but it should be stayed pending the resolution of the - - -

HIS HONOUR: There seems little point in activating the currently pending summons in that court if this action proceeds in the Supreme Court, does there?

MR McLEISH: Indeed, your Honour.

HIS HONOUR: Yes. Given that it is your side who seeks remitter to the Supreme Court, it would seem a difficult submission to maintain at the end of these proceedings that costs should go on any scale other than Supreme Court scale, does it not?

MR McLEISH: Yes.

HIS HONOUR: I would not seek to fetter the discretion of the court to which the matter is remitted, but where it goes to a court of your choosing, it would be hard for you later to say that costs should be assessed on some basis other than the full costs ordinarily applicable in proceedings in that court without deduction, but that is simply a matter of my point of view.

MR McLEISH: The submission to the contrary to that effect has not yet occurred to me, your Honour, but - - -

HIS HONOUR: It is just a challenge to your ingenuity, Mr McLeish.

MR McLEISH: But hopefully it will not become necessary.

HIS HONOUR: What I am minded to do, subject to what counsel may say, is to amend paragraph 7 of the draft minutes to provide that the costs of the defendant’s amendment and any costs thrown away by reason of the amendment should be paid by the defendant, but otherwise costs of the plaintiff’s and defendant’s summonses should be costs in the proceeding, and add as paragraph 8 a certificate for counsel. Subject to that, do you wish to be heard further on that form of order, Mr McLeish?

MR McLEISH: There are two things, your Honour. Firstly, on that form of order, in my submission, this ought to have been done on the papers and the plaintiff has adopted an unreasonable position in insisting on bringing the matter before the Court today and on that basis costs ought to be paid by the plaintiff in relation to - - -

HIS HONOUR: I do not think either side will benefit from my digging too deep into whose fault this is, Mr McLeish. I think both sides may find that an unfortunate piece of excavation. Hence my determination to suggest that the costs be costs in the proceeding.

MR McLEISH: Yes, I can see the force of that, your Honour.

HIS HONOUR: Yes.

MR McLEISH: The other point is that there have been submissions made just reducing the matter to a compensation claim for present purposes, that the case involves $38,000 only. There is a declaration sought in relation to future compensation which is unlimited in amount. Depending on the outcome in that respect, there may be costs issues which might affect my learned friends in relation to what level of costs they might be entitled to.

HIS HONOUR: But let there be no misunderstanding about this. It seems to me that the root point which the parties seek to agitate concerns the way in which the Accident Compensation Act provisions apply, if at all, in relation to workplace injuries suffered by persons to whom the Commonwealth owes obligations. If that is the root question, that is a question of generality involving much more than the amount that may be assessed as compensation due to the person claiming to have suffered injury in this matter. If that is so, it would seem to me that it is a point fit for determination in the Supreme Court by reason of the nature of the issue which is raised, rather than by reference to any consideration to the amount of compensation which ultimately might be allowed to the individual concerned.

It is for that reason that it seems to me that at the end of these proceedings in the Supreme Court there would be great difficulty in either side submitting costs of the proceedings in that court should be assessed otherwise than appropriate to proceedings in the Supreme Court without application of any one-half rule or equivalent found in legislation. It is on that basis that I am minded to remit to the Supreme Court rather than to the County Court.

MR McLEISH: Yes, your Honour, and I think that my point was really that the matter affects both sides equally.

HIS HONOUR: Yes, it does.

MR McLEISH: If your Honour pleases.

HIS HONOUR: Now, Mr Beach, do you wish to be heard against the - - -

MR BEACH: No, I do not, your Honour. The only matter that remains is, whilst I have heard my learned friend’s submission that the County Court proceedings should, to use the technical phrase we have been using, moulder for some time, it would seem to us appropriate either, as we say, to extract an undertaking that that proceeding will simply lie dormant pending
the resolution of the Supreme Court proceeding and then can be dealt with at the conclusion of the Supreme Court proceeding.

HIS HONOUR: I am not minded to exact such a condition, Mr Beach, if only because the proceeding which I have before me is the proceeding pending in this Court, not the proceeding pending in the County Court. They are distinct proceedings. I have said what I have said about the undesirability of agitating that proceeding.

MR BEACH: If the Court pleases.

HIS HONOUR: Yes. There will be orders in the terms that I have indicated. I will initial the draft and that may remain on the file. I will adjourn.

AT 9.48 AM THE MATTER WAS CONCLUDED