Crown Glass & Aluminium Pty Ltd v Ibrahim [2005] HCATrans 854 (7 October 2005)

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Crown Glass & Aluminium Pty Ltd v Ibrahim [2005] HCATrans 854 (7 October 2005)

Last Updated: 17 October 2005

[2005] HCATrans 854

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S357 of 2005

B e t w e e n -

CROWN GLASS & ALUMINIUM PTY LIMITED

Applicant

and

ALI IBRAHIM

Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 OCTOBER 2005, AT 11.55 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR H.J. HALLIGAN, for the applicant. (instructed by Edwards Michael Lawyers)

MR C.A. EVATT: I appear with MR M.K. ROLLINSON, for the respondent. (instructed by Carters Law Firm)

GUMMOW J: Yes, Mr Jackson.

MR JACKSON: Your Honour, the respondent’s entitlements to payments pursuant to the workers compensation provisions depended on his being in the course of his employment at the time when he was assaulted and robbed outside his home and could I just say a couple of things before I get onto the substance of the matter. He would not have been in the course of his employment unless, in the circumstances of the case, he had gone home to prepare the wages and had in his possession the money, some $8,000 it was said. He said he had drawn that money from the bank. It was clear that he had not done so. The finding made was that it had come from money paid to him for work in the business in cash.

If I could just take your Honours to a couple of important points in the primary judge’s reasons. The inferences which he drew may be seen at page 14, commencing paragraph 34. Your Honours, I will not read it out but your Honours will see that he said:

in an industry where tax avoidance is endemic, was conducting a - - -

GUMMOW J: Yes, but one has to read the next paragraph though.

MR JACKSON: I am sorry, your Honour. I was going to say, your Honours, particularly if one goes to the next paragraph at page 16, subparagraph (6) about line 25 and also paragraphs 36 and 37. Your Honours, a summary of the primary judge’s view and his approach may be seen in Justice McColl’s reasons at page 91, paragraphs 116 to 117. I will not go through the various references she has given, that is a summary of it. May I refer also to her Honour’s conclusion in the next two paragraphs at paragraphs 118 and 119.

Now, your Honours, that gave rise to the second aspect, the question of judicial notice and the essence of that question is that if the judge was going to rely on the view that tax avoidance was endemic in the building industry, an opportunity to deal with that issue as it presented itself or would present itself to a judge, should have been given and we would refer your Honours to section 144(4) of the Evidence Act 1995 (NSW).

Now, your Honours, this is not an academic issue and that that is so is made apparent in our submission in again, if I might refer to Justice McColl’s reasons at page 95 and in particular, at paragraphs – if I could give two references, your Honours. First of all, paragraph 131 through to 133, which gives some background to the issue and then importantly, one sees a more practical matter in paragraphs 138 and 139 at page 97. I think I referred your Honours to paragraphs 138 through to 139 and also the conclusion I should mention at paragraph 140.

Your Honours, the points we would seek to make from that are these. This is a case where the issue is one on which no doubt views might be taken. The view taken by the dissenting judge, in our submission, is one that was perfectly open but what we would say is that this is a case where special leave should be granted for two reasons: first, because it does raise an important point as to, if I could put it this way, the requirement for giving notice of reliance on aspects of which judicial notice might be taken - - -

GUMMOW J: Well, the question is, was there such reliance, I suppose, by the primary judge?

MR JACKSON: Yes, your Honour. In that regard could I take your Honours back to page 91, paragraphs 116 and 117. Now, if I could go, your Honours, for a moment just to the references that are there set out - to the primary judge’s reasons, I mean. Your Honours have been taken, I think, to page 14, paragraph 34 and I took your Honours to part of paragraphs 35 and 36 and 37. Now, when one goes to paragraph 37, your Honours will see the reference to:

do not reflect well on the manner in which the applicant operated his business.

That seems, in the context, to be referring to the way in which he carried on his business in a kind of cash way. Your Honours will then, and I am referring your Honours to the order in which the matters are set out in paragraph 116, page 91, if one goes then to the primary judge’s reasons at paragraph 72 on page 22 and one goes also to the discussion in 73 to 76 and paragraph 77 one sees also a reliance on the cash payments made to make up wages and then paragraph 89 your Honours will see the conclusion. Now, your Honours, we would submit in that regard that Justice McColl’s view expressed at page 91, paragraph 117 is an appropriate view of the primary judge’s reasons.

Before your Honour asked me that question, what I was going to say was that our submission is that this is a case where special leave should be granted for two reasons. First, as I mentioned earlier, it does raise an
important question as to the extent to which notice of reliance or potential reliance on a matter of judicial notice should be given, but secondly, in our submission, in the interests of justice in the particular case. Your Honours, those are our submissions.

GUMMOW J: Thank you, Mr Jackson. We do not need to call on you, Mr Evatt.

We are not satisfied on a reading of the reasons of the primary judge that any question arises in respect of the principles of judicial notice. There are no other issues which would attract the grant of special leave.

Accordingly, special leave is refused with costs.

The Court will adjourn until noon on Friday, 21 October 2005 at Canberra.

AT 12.03 PM THE MATTER WAS CONCLUDED