Hastings Deering (Australia) Ltd v Smith [2005] HCATrans 1035 (16 December 2005)

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Hastings Deering (Australia) Ltd v Smith [2005] HCATrans 1035 (16 December 2005)

Last Updated: 5 January 2006

[2005] HCATrans 1035

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No D8 of 2004

B e t w e e n -

HASTINGS DEERING (AUSTRALIA) LTD

Applicant

and

DAVID JOHN SMITH

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM DARWIN BY VIDEO LINK TO CANBERRA

ON FRIDAY, 16 DECEMBER 2005, AT 12.17 PM

Copyright in the High Court of Australia

MR P.M. BARR, QC: May it please the Court, I appear for the applicant. (instructed by Hunt & Hunt)

MR P.X. ELLIOTT: If the Court pleases, I appear for the respondent. (instructed by Ward Keller)

GLEESON CJ: Thank you. Mr Barr, in the papers that we were given there was reference to a proceeding challenging the validity of that aspect of the legislation that was enacted to overcome this decision that was retrospective. I thought there was a suggestion in that note that it was expected that by the end of 2005 something would have happened in those proceedings.

MR BARR: Yes, your Honour, that was the expectation. Unfortunately, what has happened is that the matter started as a stated case from the Work Health Court to a single judge of the Supreme Court. It was then referred, without being heard, by the single judge to the Full Court of the Supreme Court of the Northern Territory and, as I understand it, it is not now to be heard until May 2006, whereas it was hoped that there may have been some clearer indication that we could give the Court today as to the fate of that matter. We are still in a state of some uncertainty.

GLEESON CJ: All right. We will just go ahead and deal with this application on its merits. We notice that it is not opposed but we do not grant special leave by consent and what you will need to persuade us of, Mr Barr, is that there are sufficient prospects to doubt the correctness of the decision of the Full Court.

MR BARR: Yes, certainly, your Honour. Thank you. As has now been made clear in written submissions - and I take it that your Honours have received the final word on this, the applicant’s further supplementary argument which was filed yesterday - there is no longer any issue between the parties as to whether the term “remuneration” includes superannuation contributions made by the employer to a fund for the benefit of the worker. In other words, it is now accepted and it is no longer to be argued that the term “remuneration” is broad enough to include such things as superannuation contributions made to a fund.

KIRBY J: Is that affected by the legislation which has been enacted or not? Will that be undone if that legislation is valid?

MR BARR: What would be undone, your Honour, is that superannuation contributions, whereas they may be part of remuneration, will not be part of remuneration for the purpose of calculating normal weekly earnings under the Work Health Act.

KIRBY J: Why would this Court get into a matter of highly particular Northern Territory legislation when the legislature has enacted a law to reverse the effect of the decision which is the subject of the application? I mean, just assume for the moment that there is no problem with validity because that is put to one side. Why would we bother to get into a case like this when there are so many other statutory interpretation questions presented to us?

MR BARR: Your Honour, because there are doubts as to the validity of the - - -

KIRBY J: So what? If it has been fixed up by the legislature and to make clear its purpose, why would we bother looking at this highly particular piece of legislation and deciding whether or not the Court of Appeal got it correct?

MR BARR: Because of the consequences in terms of the flow-on effect as a result of the decision, your Honour. As I have mentioned in the submissions first filed, when the amending legislation was passing through the Assembly the relevant Minister informed the Parliament that there was an estimated $15 million in past payments of workers compensation unpaid if normal weekly earnings were held finally to include superannuation contributions.

GLEESON CJ: You accept that remuneration can include superannuation?

MR BARR: Remuneration can, yes.

GLEESON CJ: Where is the error in the reasoning of the Full Court?

KIRBY J: Because until now you have been tooth and nail – you have been resisting this at every step of the way.

MR BARR: We have been resisting that, your Honour, but we have also been resisting on another ground, which is the remaining ground that is sought to be argued this morning. Put simply, it is this: three of the four meanings of “normal weekly earnings” set out in section 49 of the Work Health Act do not include, we contend, superannuation contributions. A fourth one apparently does. The argument again put simply is that the fourth one should be read consistently with the other three so that there is no incongruity between the outcomes for injured workers.

GLEESON CJ: Where can we most conveniently find the statutory text?

GUMMOW J: Page 58, is it?

MR BARR: Yes, the most convenient place would be at – of “normal weekly earnings”, your Honour, the appropriate part would be at application book 58 and 59.

GLEESON CJ: Thank you. Just show us your argument by reference to the text.

MR BARR: Your Honour, there are four categories of descriptions, if you like, of normal weekly earnings that you will see. There are paragraphs (a), (b), (c) and (d). In other words, there are four meanings of the expression “normal weekly earnings” depending on how a particular worker is categorised. What is significant in that analysis is that the definition in paragraph (a) is subject to the other three paragraphs. Just to confuse matters further, the definition in paragraph (d)(ii) is “subject to paragraph (b) or (c)”. Your Honours, as I understand those, subject to where they twice appear, you have to determine whether a worker can be characterised under paragraphs (b), (c) or (d) before you come back to paragraph (a), if you like, as a default meaning. In paragraph (d)(ii) you have to see whether a worker can be categorised under paragraphs (b) or (c) before you would apply the meaning set out in paragraph (d). It is somewhat convoluted and not easily resolved, in my submission.

GUMMOW J: Yes, but how should it be resolved, do you say?

MR BARR: The way in which I say it should be resolved, your Honour - and I will take you to some further statutory text to demonstrate this - is that to the extent that paragraph (d) read alone might indicate that by the expression used there, “the average gross weekly remuneration”, might indicate that you do look at all remuneration, including superannuation contributions, you have to stop and say that would mean that if you happen to slip within the fortuitous circumstances set out in, for example, paragraph (d)(i) or (ii) you are entitled to have superannuation taken into account, whereas if you come within any of the other three paragraphs you are not so lucky. The simple submission is that that cannot be what is intended. The way in which the provisions should be read should be to at least allow for consistency between them.

GLEESON CJ: I understand your consistency point. Where do we find the Full Court dealing with it?

MR BARR: Your Honour, in answer to that question, if I could just say briefly, the Full Court dealt with that particular argument at application book 78. At paragraph [53] his Honour the Chief Justice turned to deal with the argument that is put by me today. He continues up to paragraph [61] at application book 82. In effect, what the Court of Appeal decided was that even workers characterised under paragraphs (b) and (c) were entitled to have superannuation contributions included in their normal weekly earnings and that was via the mechanism of the term “ordinary time rate of pay” So, your Honours, as I say, the way in which the Chief Justice dealt with the argument now put and put before him previously was to say it is not right that workers in paragraphs (b) and (c) do not have superannuation. They may well do.

He dealt with that specifically at application book 80, paragraph [57] where he set out the definition of “ordinary time rate of pay” and then continuing on to page 81 of the application book resolved the issue for the Court of Appeal that “ordinary time rate of pay” definition in the alternative would allow all remuneration to be taken into account. So as a result, his Honour the Chief Justice reached the conclusion that you do take into account all remuneration for the purpose of determining ordinary time rate of pay and that applies to the workers in all of the categories (a), (b), (c) and (d) in “normal weekly earnings”.

The particular error that the applicant contends for in the decision of the Chief Justice is at paragraph [60] at application book 81. However, to understand the error, your Honours, it is necessary to look at the definition of “ordinary time rate of pay” on the previous page, to note paragraph (a) which your Honour the Chief Justice correctly found reflects the traditional view:

ordinary time rate of pay fixed by the terms of his or her employment –

The focus then is on paragraph (b) of the definition of “ordinary time rate of pay” and its two sub-parts (i) and (ii). (b)(i) received the focus of the Chief Justice who said this is a case of a worker who is remunerated otherwise than in relation to an ordinary time rate of pay and who then went from that stage to saying if it is remunerated, the word - we look at remuneration. Remuneration would include superannuation contributions.

Where I contend the Chief Justice fell into error is that he did not read on within subparagraph (b) to the expression, “the average time rate of pay”. The two, if you like, descriptions in subparagraphs (i) and (ii) are conditions precedent to invoking the notion of “average time rate of pay”. What the Chief Justice did at paragraph [60] was to overlook that the requirement is average time rate of pay and to assume that it meant average time rate of remuneration. On my contention, as put in the written material, “remuneration” is a wider concept than “pay” and his Honour has failed to bear in mind the distinction where at paragraph [60] he has suggested that all components of remuneration should be included within the notion “average time rate of pay”.

That is where, in my respectful submission, the Court of Appeal has erred and has erred in terms of finding that in effect all workers, whether they are (a), (b), (c) or (d) of normal weekly earnings, will have superannuation included in their normal weekly earnings.

KIRBY J: I think we understand the way you put the argument but can I ask you again, on the question that I raised at the beginning, is this issue for the future fixed up by the supervening legislation?

MR BARR: For the future, yes, it is, your Honour, except - - -

KIRBY J: It is. So we would be fussing about in this statute of the Northern Territory with its high particularity and what you say are its rather unsatisfactory elements to try and work it out, although the Parliament of the Northern Territory has addressed the issue and fixed it up?

MR BARR: It has, your Honour, and I agree with your proposition. The difficulty is that if the law is as the Court of Appeal has held, it leaves unresolved the last 15 years. I appreciate the Court’s concern for what the future may be but it would be rare in this context to have a past that is as extensive as 15 years which may or may not have been rectified, depending on the validity of the amending legislation.

KIRBY J: That leads to the second question. If the amending legislation is upheld and is perhaps considered in this Court and is held valid, then again this Court would be simply wasting its time by going into this issue, would it not?

MR BARR: It would, your Honour. What I say to you is that if you are concerned by the fact that what is presently a question of law of public significance may cease to be a question of law of public significance at the conclusion of the Chaffey Case - - -

KIRBY J: This is the one that is pending in the Court of Appeal now?

MR BARR: Correct, your Honour. So, if you are concerned that what is presently a question of public importance may cease to be, then the appropriate thing to do would be to adjourn off this application, although that is not entirely satisfactory, until after the pending case has been finally resolved. For all we know, that may end up in the High Court as well. We can only - - -

KIRBY J: That would seem to be the more sensible course. Do we then look at the matter in the alternative, that is to say – I mean, it may be that the Court of Appeal will make it absolutely clear and in that event there will be no application to this Court but if, as would seem likely, given the stakes involved, that there was at that stage an application to this Court, then what would be the argument against this matter coming at the same time so that the two issues can be resolved, as it were, in the alternative? They present legal alternatives.

MR BARR: Yes, your Honour. I would entirely endorse that. In fact, although, as I say, it involves a wait of possibly six months or so, this particular - - -

KIRBY J: You are going to have a wait anyway. You are going to have a wait of six months. It is a question of whether you have a wait of six months or a wait of a year or something of that order but we have to think of conserving our valuable time. Anyway, I put that to you and I understand what you say in answer.

MR BARR: Yes. Your Honour, if I could add to that simply by saying that this particular vehicle - if I could call a court case a vehicle - has already come a substantial extent and so if it came to a decision as to whether you would refuse special leave or adjourn it until after the pending case is determined, I would certainly urge on you that you do the latter and adjourn it off to a later time, perhaps to a date to be fixed to be notified once the parties notify the Court of the outcome of the other case.

GLEESON CJ: All right. We will adjourn for a short time to consider the course we will take in this matter.

MR BARR: If the Court pleases.

AT 12.37 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.38 PM:

GLEESON CJ: Mr Elliott, I am assuming that your desire not to be heard on this matter extends to not to be heard on the proposal that has just been made by Mr Barr?

MR ELLIOTT: That is right, your Honour.

GLEESON CJ: In this matter we have been informed that the Northern Territory legislature has enacted legislation which makes moot the point that the applicant seeks to raise in this Court. We have, however, also been informed that there is current in the Northern Territory courts litigation challenging the validity of part of that legislation.

The course we propose to adopt is to stand this matter out of the list with liberty to the parties to restore it to the list as they may be advised in the light of the outcome of the pending litigation in the Northern Territory.

We note a letter from Ward Keller Lawyers dated 13 June 2005 which informs us of certain agreements between the parties, including agreements in relation to costs. In the light of those agreements, we presume there is no need for us to make any order as to the costs of today’s proceedings.

MR ELLIOTT: Yes, thank you, your Honour.

GLEESON CJ: Thank you. We will adjourn for a short time to make contact with Perth.

AT 12.40 PM THE MATTER WAS ADJOURNED