WorkCover Queensland v Lau B59/2002 [2003] HCATrans 647 (14 March 2003)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B59 of 2002

B e t w e e n -

WORKCOVER QUEENSLAND

Applicant

and

KIN YING LAU

Respondent

Application for special leave to appeal

McHUGH J

HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 14 MARCH 2003, AT 12.07 PM

Copyright in the High Court of Australia

MR R.J. DOUGLAS, SC: May it please the Court, I appear with my learned friend, MR K.F. HOLYOAK, for the applicant. (instructed by Thynne & Macartney)

MR M. GRANT-TAYLOR, SC: May it please the Court, I appear with my learned friend, MR G.R. MULLINS, for the respondent. (instructed by Stephens & Tozer)

McHUGH J: Yes, Mr Douglas.

MR DOUGLAS: Your Honours, the decision the applicant seeks to impugn cuts across two of the exigencies of regulation of workers' common law claims in a scheme of this type. The first is the need for an assessment of all injuries alleged to result from a work accident so as to afford the worker an offer of maximal statutory compensation, so that he or she sensibly can elect to accept or reject the same in lieu of proceedings for damages in common law. Secondly, the need for a statutory insurer seeking to compromise the damages claim in the pre-proceeding process laid down by the legislature to have before it a comprehensive list of injuries, previously assessed, to which an offer by it can be sensibly directed, and a statutory timetable prescribed in the Act to apply. Your Honours, we have identified in our outline analogous provisions of the Victorian legislature which are presently on foot unamended - - -

McHUGH J: They are not too analogous, are they?

MR DOUGLAS: We submit they are. We discussed the matter with our learned friends and the parties concurred that the identified provisions of the Victorian Act are linguistically and conceptually very similar to the Queensland Act. There is a difference, or potential difference, in that the form of application arguably differs in that the Queensland Act, as the appellate judgment sets out, requires setting out of full particulars of the nature and extent of all injuries alleged to have been sustained by the claimant because of the event, whereas the Victorian form requires the claimant to specify the injury or injuries relied upon.

We of course submit, your Honours, that that does not matter, even though it seems to have been the basis of the appellate decision. We submitted in the outline that it is a case of, to put it colloquially, the tail wagging the dog because in fact, as we submit in the outline, whilst at page 20 of the record commencing at paragraph [31] in the majority decision the court accepted the force of the Act provisions dictating the requirement for a single notice of assessment in respect of all injuries, and a proscription on the seeking of damages until that was done, the court then proceeds in the majority judgment on page 22 of the record commencing at paragraph [38] and concluding at paragraph [40] to countenance the inclusion in the pre-proceeding notice of claim an unassessed injury which, in the words of the court, "which, when assessed, is to be the subject of a damages claim".

Now, what that presupposes is therefore that a claimant can have an assessed injury, have a notice of assessment, include an additional claim which has not been assessed but on the premise that an assessment may later be made in respect of that unassessed injuries, that that can be comprehended by the claim. We would submit in light of the provisions which the court accepted on the proper construction of the Act, that conclusion is non sequitur. We submit it is a flawed approach.

Two consequences can arise, in our submission. The first is that there can be a splintering of claims potentially, in our submission. The appellate court's approach countenances are splintering for the purpose of accepting lump sum compensation and damages. Again, the style of the Act is such as to set up, except in respect of the most serious claims, an election for a worker between accepting the tabulated figure based on the assessment or electing not to accept that and taking one's chances, so to speak, with a common law claim. The approach of the Court of Appeal, we would submit, allows of a construction whereby an assessment can be sought in respect of some injuries. There is an election taken to accept the statutory no fault lump sum offer but then seeking an assessment in respect of other unassessed injuries and proceeding at common law. We would submit that is a construction of the Act which ought not be contemplated. The second is a matter of - - -

McHUGH J: You are dealing with a question of statutory construction which is notorious for generating divisions of opinion. You have it here. Two judges come to one view, two to another view. Legislation has been repealed. It has no exact counterpart in any other State or Territory. Why should this Court take up its time by granting special leave on questions of statutory construction of a statute of one State?

MR DOUGLAS: Your Honours, two points about that. The first is that we would submit the construction adopted at this instance is manifestly wrong. Now, we know that that is not sufficient to attract special leave because it is a State Act, but that is still a relevant premise and a sound premise upon which to proceed. There are actually two more points. We then submit that there is an analogy interstate in respect of Victoria. Certainly the parties agree that that is largely the case, not wholly the case.

The third point is this. This is a very litigious area in this State. Even though the legislation has been amended in October 2001, there are still a raft of claims necessarily over the ensuing 18 months until cases whose limitations expire in October 2004 come to pass. Where those three matters exist, we would submit that it is an appropriate case for the Court to embrace as one which would attract special leave. Your Honours, with respect, one cannot approach a matter like this on the basis that it is a question of statutory construction and thereby the High Court would not under any circumstance entertain an appeal in such a decision.

McHUGH J: No, but the Court has to balance up a number of factors in the grant of special leave. We can only hear some 50 to 60 cases a year, and when a matter of statutory construction basically concerns only one State, it is a legitimate factor. It is just that there are competing views about the matter. There is just nothing special about the case. It is different if it applies in other States.

MR DOUGLAS: Yes. Your Honours, I do not want to rehearse the submission we have already made in that respect. The only other matter we should advert to is this. There was an affidavit which we received in the last few days from our learned friends relating to the means by which WorkCover, the applicant, is dealing with these matters since the appellate decision. We infer that it is sought to be relied upon by our friends as indicating there is a practical means of dealing with the court's decision. We would submit in fact to the contrary. What it points up is the difficulty in its text with the difficulty with which WorkCover has to approach these matters in light of the appellate court's decision. At the slight risk of repeating our submission, we would submit that the same problem will arise in Victoria under their legislation. We cannot assist your Honours any further.

McHUGH J: Thank you. We do not need to hear you, Mr Grant-Taylor.

The applicant invites this Court to consider the construction of certain provisions in the WorkCover Queensland Act of 1996. The trial judge, Mr Justice Muir, and Justice Williams in the Court of Appeal, adopted one construction of the legislation, which the applicant supports. On the other hand, in the Court of Appeal Justice Byrne, with whom Justice McPherson agreed, adopted another.

The construction preferred by the applicant does have force, but that is not unusual in questions of statutory construction which notoriously generate a number of opposing but nevertheless reasonable views concerning the construction of the legislation. The legislation in question is of recent origin. It has been repealed. It has no exact counterpart in the legislation of other States or Territories, although there is a broadly analogous provision in Victoria.

In all the circumstances, we do not consider that this case is sufficiently special to warrant the grant of special leave. Accordingly, the application is dismissed and must be dismissed with costs.

AT 12.17 PM THE MATTER WAS CONCLUDED