Hamling v Australia Meat Holdings Pty Ltd [2006] HCATrans 409 (4 August 2006)

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Hamling v Australia Meat Holdings Pty Ltd [2006] HCATrans 409 (4 August 2006)

Last Updated: 1 September 2006

[2006] HCATrans 409

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B104 of 2005

B e t w e e n -

MARK HAMLING

Applicant

and

AUSTRALIA MEAT HOLDINGS PTY LIMITED

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 4 AUGUST 2006, AT 10.12 AM

Copyright in the High Court of Australia

MR R.A. INGHAM-MYERS: May it please the Court, I appear with my learned friend, MR E.J.C. HOWARD, on behalf of the applicant. (instructed by Trilby Misso)

MR J.A. GRIFFIN, QC: May it please the Court, I appear with my learned friend, MR G.J. CROSS, for the respondent. (instructed by Abbott Tout)

GLEESON CJ: Yes, Mr Myers.

MR INGHAM-MYERS: Your Honours, this is an adjourned application for special leave. The matter came initially before the Court by way of application for special leave immediately prior to the occasion when the Court had considered special leave applications in both Berowra Holdings Pty Limited v Gordon and Brighton und Refern Plaster Pty Limited v Boardman. It was adjourned on that occasion so that the matter could be re-listed after the decisions had been given in those two cases and also because there was then pending before the District Court a strike-out application that had been made by the respondent to this application.

GLEESON CJ: This litigation seems to have reached an astonishing level of complexity. What is its current status, Mr Myers?

MR INGHAM-MYERS: Your Honour, its current status as far as the District Court is concerned and the suggestion seems to have been by the Court on the earlier occasion to really look at the District Court proceedings and their current status and, of course, this application in the light of what was said in Berowra and Brighton, but to answer your Honour’s question the District Court judge who determined the respondent’s strike-out application dismissed the application. So there is currently on foot a District Court action. That decision of his Honour Judge Tutt of the District Court is on appeal to the Court of Appeal.

GLEESON CJ: Does it require leave?

MR INGHAM-MYERS: Yes, it requires the leave of that court.

GLEESON CJ: What is happening there?

MR INGHAM-MYERS: The leave application has not yet been heard and determined. In the light of, really, what the Court said at first instance on this application, it is the appellant’s contention that really all matters can be resolved once and for all now because the matters before the - - -

GLEESON CJ: By the High Court?

MR INGHAM-MYERS: Yes.

GLEESON CJ: All matters?

MR INGHAM-MYERS: Yes. The suggestion – and I do not know if your Honour has had an opportunity of considering what was said by the Court when the application initially came before the Court - - -

GLEESON CJ: Do not worry about that. Let me be blunt: what is going on in Queensland?

MR INGHAM-MYERS: Your Honour, the position in Queensland currently is that in due course there will be an application for leave – it is not a special leave requirement in Queensland – but one would have thought - - -

CALLINAN J: That is to go to the Court of Appeal, is it, in Queensland, Mr Myers?

MR INGHAM-MYERS: Yes, it is a leave application to the Full Court of Appeal but it is not a special leave application. Your Honours, the decision by Judge Tutt is really so closely aligned – and I can demonstrate that, the judgments here and certainly the earlier suggestion was that this Court could perhaps look at that judgment too – with the judgment that was given in Brighton und Refern, of which your Honour the Chief Justice of course was a party to the decision, that it seems probably inevitable that leave would not be granted. In any event, that seems to be, with respect, no reason why the application for special leave in its original form cannot go ahead now, particularly in the light of what was said by this Court in Brighton and Berowra.

GLEESON CJ: You go ahead and address the merits of this particular decision of the Court of Appeal of Queensland with which we are concerned.

MR INGHAM-MYERS: If your Honour pleases. Your Honours, could I at the outset hand up a limited chronology which I have made available to my friends in respect of the compliance point which it is relied upon as being the first special leave matter. There are really only two points in this current application.

GLEESON CJ: One is whether the District Court could give leave to proceed in the Supreme Court, is it not?

MR INGHAM-MYERS: Yes, that is the second one. The first one, your Honour, is that both really fall into the same category in this sense. These were established common law rights that a worker had to proceed against his employer when he was injured in the workplace in circumstances where there evidence of negligence on the part of the employer. Until the enactment of the WorkCover legislation in what I would submit.....form, a writ could have been issued at any time within the first three years prior to the expiration of the limitation period to enable this man to enforce his rights.

The legislation when it was introduced was terribly strictly interpreted in Queensland and it is reflected in the decision of this Court in Berowra Holdings that these matters were really only matters of administration and procedural rules and they did not destroy entrenched common law rights.

Now, what has happened in this case is that in two instances because it is said that there was a failure to deliver what is known as a Health Insurance Commission notice of charge prior to the expiration effect of the limitation period that this man forever lost his common law rights. That is the first issue. The second issue is that an administrative leave, as the applicant would put it, necessitating that a court look at the matter and determine if it was a matter that was capable of going ahead, prior of course to the six-month moratorium period where both parties had to co-operate to endeavour to reach an agreement, had to be given by the very court in which the proceedings were to be instituted, contrary to the legislation.

GLEESON CJ: If the decision of the Court of Appeal on that point, that is, the identity of the court giving leave, is correct, does that mean that the appeal in this matter with which we are concerned would fail, leaving on foot the District Court proceedings?

MR INGHAM-MYERS: No, at least ultimately, not unless the Court, if we do get leave, was ultimately also against us on the first point, that is to say, the Health Insurance Commission notice of charge.

GLEESON CJ: Where is that dealt with in the reasons of – did Justice Keane deal with that?

MR INGHAM-MYERS: Yes, he does.

GLEESON CJ: What page?

MR INGHAM-MYERS: Your Honours, might I approach it in this way, because it is really necessary to take your Honours – and it will not delay the matter to any great extent – to the supplementary record, if I may, simply to trace this point through, because this is the simplest way of dealing with it. Could I take your Honours to page 86 of the supplementary record, if I may.

GLEESON CJ: What is it that you are - - -

MR INGHAM-MYERS: Your Honour, it is the appeal record in - - -

GLEESON CJ: We have that?

MR INGHAM-MYERS: Yes.

GLEESON CJ: Which is amazing, on a special leave application. As I say, this litigation has reached a most astonishing level of complexity. But all I want to know at the moment is where in his reasons Justice Keane dealt with the point that you are talking about, and you ought to be able to answer that question by referring to a page in the application book.

MR INGHAM-MYERS: Yes, I can, your Honour. His Honour Justice Keane deals with the matter at page 45 of the record in this Court.

GLEESON CJ: Thank you. Paragraph?

MR INGHAM-MYERS: Your Honour, paragraph [48] is the commencement.

GLEESON CJ: Thank you. What is the meaning of the last sentence in paragraph [49]?

MR INGHAM-MYERS: Your Honour, there was what could be described as a window of opportunity. After leave having been given, the conference that was required by the legislation – the leave having been given in December of 2003 – was held in October 2004 and the applicant had 60 days from that date to commence new proceedings, to forget the old proceedings, in effect, and commence new proceedings prior to the 26 December 2004, and rather than commence the proceedings in the District Court – because the first point taken by the respondent was correct, that is to say there was no locality jurisdiction in the court at Brisbane, notwithstanding that they had agreed to a consent order before Judge Noud in the District Court of Brisbane, the proceedings should have been instituted in Ipswich. So there was no locality jurisdiction and in that window of opportunity where the Court said that because the leave was limited to the District Court the applicant could have gone up to Ipswich and issued proceedings in that window of opportunity prior to the 26 December 2004, but instead he commenced the proceedings in the Supreme Court at Brisbane which, of course, has locality jurisdiction for the entire State. But that is that reference.

GLEESON CJ: Anyway, subject to the possibility of a decision being overturned on appeal in the Court of Appeal, at the moment the proceedings are back on track in the District Court?

MR INGHAM-MYERS: Yes, that is so, but may I take your Honour to this matter which is addressed by Justice Keane at 45 simply to demonstrate, with the greatest of respect to his Honour, that his Honour is wrong. I can take you to what Justice Jerrard says about it where he gets it right with the one exception. Your Honour, the second record of all of the District Court material that has been put before the Court, perhaps even erroneously – and I would ask you to disregard that – the Court does have the record that was the appeal record in the Supreme Court. It really is necessary to demonstrate that it is a special leave matter to take your Honours to that if I may. It is the second record of this kind with the Court of Appeal but it is in relation to Court of Appeal No 4149 of 2005 as opposed to the respondent’s more recent application.

GLEESON CJ: The front page is headed “APPLICANT’S INDEX TO BUNDLE”, is that right?

MR INGHAM-MYERS: No, your Honour. It is headed “APPEAL RECORD BOOK INDEX IN THE COURT OF APPEAL” and it is “CA NUMBER: 4149/05”.

CALLINAN J: It comes with the letter of Mr Myers of 7 March 2006, is that right?

MR INGHAM-MYERS: Yes, your Honour.

GLEESON CJ: I am going to hand you down all the bundles that are in my possession. I do not know where they came from but I am handing them down to you and I am going to invite you to pick out the right one to me. Apart from those, I do not have any bundles.

MR INGHAM-MYERS: Thank you, your Honour.

CALLINAN J: I did not even get the Court of Appeal decision.

GLEESON CJ: Is this a number of papers following a letter from Robert Myers, Barrister at Law, to the Registrar of the High Court? Is this what you are talking about?

CALLINAN J: It is dated 7 March 2006, Mr Myers.

MR INGHAM-MYERS: It is, your Honour, and none of those other papers, except, I might say, there is a copy of the legislation to which your Honours may wish to have reference, but otherwise the papers in the large bundle are relevant only to the District Court proceedings. If I might hand up that document, and that was sent to the High Court, your Honour, before the hearing of the last special leave application so that that material could be before the Court. If I might take your Honours to page 86 and just in four references I can demonstrate the point.

Your Honour, page 86 is the offer of settlement which an applicant or a claimant for damages is obliged to make pursuant to the legislation to WorkCover or, in this case, a self-insurer. Your Honours will see, if you go down about two-thirds of the numerical figures, that the gross settlement amount that is offered is little more than half a million dollars, that is to say $503,260.56. Your Honours will also see if you go down four lines that this man has already been advanced by AMH, by the respondent, $116,000. So your Honours will see that it is quite a serious injury and it is obviously of consideration when the special leave question is being determined.

If I could take your Honours up to the area halfway down that are headed “Special Damages”, these are the only three matters that were, ultimately, ever in issue. Pharmaceutical $1,000, and it seems to be an estimate, not necessarily there described as such; travel expenses $500; and the HIC, which is the Health Insurance Commission, the amount refundable, in respect of only medical expenses, as your Honours will be aware, nothing else, just what was spent on the doctor that the Commonwealth is entitled to be reimbursed, it is TBA – to be advised – because the figure was not then known. That was the notice that was presented, the figures that were presented.

If your Honours go to page 95, if I could take your Honours to that, you will see there is a very long letter which deals with the matter of non-compliance, but it is only question 58 with which this Court and the Court of Appeal and, of course, Justice Chesterman were concerned. Question 58 sets out the requirements of WorkCover regulation:

Your client is required to provide full particulars of the nature and extent of the amount of damages . . .

We note your client’s claims . . . We require your client to provide . . .

• details of the medical attendances, the names of the medical providers and cost of the consultation –

that is, of course, the HIC document –

• the distance and rate at which travel to doctors and other medical providers is calculated at for past travel –

that is the global claim of $500, and:

• the types of medication claimed and the amount of such medications for pharmaceutical expenses.

The next sentence is telling. It was not dealt with at all by Justice of Appeal Keane and an erroneously dealt with by Justice of Appeal Jerrard:

We require your office to provide an undertaking to provide us with the HIC Notice of Charge within 7 days of receipt. This information is required to make an assessment of your client’s claim.

All that is simply asking for is the HIC notice to substantiate the first dot point, that is to say, details of medical expenses. It is then necessary to go simply to page 97 where you will see that there is a response. It is not necessary to go to the response because of the narrow issues. The penultimate paragraph:

We hereby undertake to provide the HIC Notice of Charge to your office within seven days of receipt thereof.

So not only is the undertaking given but it is given in the precise terms sought at 95, as Judge Tutt ultimately found in the District Court proceedings. You then have, if I could take you to 101 on the way through:

In relation to my response to Question 58 of my Notice of Claim for Damages, I say that I am currently prescribed as follows: 2 x Epilim 500 mg/day (packet of 200), 4 x Seroquel 300 mg/day (packet of 60), 3 x Valium 15 mg/day (packet of 40) –

and he sets out the prices of them. So that is in relation to the pharmaceutical charge. So the $1,000 estimate disappears and that seems to be - - -

GLEESON CJ: But this seems to amount to the proposition that the Court of Appeal in this case overlooked a factual matter.

MR INGHAM-MYERS: Yes.

GLEESON CJ: Now, that may be right. Let me assume it is. That would suggest that if there were to be a grant of special leave, it would not be on the basis that there was some issue of law of general importance that required consideration by this Court, but on the basis that the interests of justice required a grant of special leave. Correct?

MR INGHAM-MYERS: Well, your Honour, with respect, I would put it on both bases. Certainly I would accept the - - -

GLEESON CJ: If it is the case that the outcome of this appeal would turn upon the proposition that the Court of Appeal misunderstood some correspondence, then the basis of the grant of special leave would be the interests of justice, would it not?

MR INGHAM-MYERS: Your Honour, I would accept that, but could I also advance it on the basis, to meet your Honour’s former point, that if a person could be deprived of a claim prima facie valued at half a million dollars because of - - -

GLEESON CJ: That is the point I am coming to. Your client is still vigorously pursuing the claim.

MR INGHAM-MYERS: Yes.

GLEESON CJ: What would this Court be doing sitting for a day to listen to argument on an appeal about whether the Court of Appeal misunderstood some letters in circumstances where the only reason for doing that was the interests of justice, and your client was still pursing in the District Court in Queensland a claim for compensation? We would be establishing a precedent about the construction of some correspondence.

MR INGHAM-MYERS: Your Honour, I would submit not, because the point goes much deeper than that. It is that a person is being deprived of entrenched common law rights - - -

GLEESON CJ: But your client is not deprived of his rights as the way things stand at the moment. The way things stand at the moment, he has every opportunity to pursue his rights in the District Court, unless something adverse happens to him in the Court of Appeal of Queensland. Is that not so?

MR INGHAM-MYERS: Yes, that is so.

GLEESON CJ: Well, would we be dealing with this appeal on the basis that your client might be deprived of his rights if as things turned out the Court of Appeal overrules the decision of Judge Tutt?

MR INGHAM-MYERS: I would submit it is appropriate, your Honour, in this sense, that the decision that this Court has given in Brighton now shows that, even if the undertaking had not been given, to deprive this man of a half a million dollar claim when an HIC document which has to be refunded, it can only disadvantage the plaintiff. It is a statutory obligation on the insurer to account to the Commonwealth. If that is the only basis upon which he has been deprived of a half million dollar common law claim, it is a matter deserving of special leave and it is not simply this HIC point, which was of course the initial and preliminary point, but it is also the second point.

GLEESON CJ: When is the Court of Appeal of Queensland going to deal with the appeal from Judge Tutt?

MR INGHAM-MYERS: Your Honour, the only reason it is not being dealt with is because of the suggestion on the first occasion that this Court should look at the matter after the decisions were given in Berowra and - - -

GLEESON CJ: Thank you. We will hear what your opponent has to say. Yes, Mr Griffin. This does really seem to be a most amazing piece of litigation.

MR GRIFFIN: Your Honour, first of all this matter has nothing to do with the Berowra Holdings Case which was the reason that the matter was adjourned on the last occasion, as it turns out. It is the District Court matter that had something to do with the Berowra Holdings Case.

GLEESON CJ: And so far Mr Myers’ client is winning on that issue.

MR GRIFFIN: Yes.

GLEESON CJ: Your client is pursuing, what, an interlocutory appeal?

MR GRIFFIN: It is seeking leave to appeal against the decision of Judge Tutt.

GLEESON CJ: Judge Tutt’s decision being to what effect?

MR GRIFFIN: Judge Tutt’s decision was that there was waiver of the statutory requirement because in the District Court case - - -

GLEESON CJ: No, I am sorry, that might be a reason for a decision. What was Judge Tutt’s order?

MR GRIFFIN: His order was the District Court proceedings ought not to be struck out.

GLEESON CJ: There is an appeal pending in the Court of Appeal of Queensland against an order refusing to strike out the District Court proceedings.

MR GRIFFIN: Yes.

CALLINAN J: Mr Griffin, I am interested in the reason. The reason is that Judge Tutt found that there was a waiver by your client; is that correct?

MR GRIFFIN: Yes, that is right.

CALLINAN J: What constituted the waiver, just in short form?

MR GRIFFIN: Yes. In relation to the District Court proceedings, as opposed to the Supreme Court proceedings, there were pleadings in the District Court proceedings and other steps taken which the applicant said, and still says, constituted a waiver of the breach of the statutory condition.

CALLINAN J: Was the condition pleaded by your client, a failure to comply with it in the pleading, in the defence?

MR GRIFFIN: It was in the pleading, yes, but they say there was an agreement and there were other steps taken.

GLEESON CJ: The agreement arising out of the correspondence that we have been referred to earlier this morning?

MR GRIFFIN: No, your Honour, that is another lot of correspondence. That relates to the other side of the case which is the question of whether the notice of claim is a complying notice of claim.

CALLINAN J: I am sorry, I just do not quite know enough about the District Court proceedings that are still on foot. What was the precise act of waiver, in short form, for which Judge Tutt found?

MR GRIFFIN: In short form, that there were pleadings and other steps taken prior to the issue being raised.

CALLINAN J: You have told me about the pleadings and the pleadings raise the point of non-compliance. What other matters were there?

MR GRIFFIN: Your Honour, there were discussions between the parties that were relied on as well.

CALLINAN J: They were without prejudice discussions or - - -

MR GRIFFIN: Which the applicant says amounted to an agreement with respect to the future disposition of the matter.

CALLINAN J: Is that all in correspondence?

MR GRIFFIN: That is all in correspondence, yes. So that is what that application raises.

CALLINAN J: So the Court of Appeal will be looking at that correspondence; is that right?

MR GRIFFIN: Yes, but this correspondence that my friend has raised is the correspondence that the Court of Appeal looked at in this matter and, of course, the Court of Appeal did look at all of the correspondence and addressed the question: was the notice of claim compliant or non-compliant? It held that the notice of claim, in the context of that correspondence, was non-compliant because there was a mandatory requirement that in a notice of claim they had to put in all of the special damages.

GLEESON CJ: Does the decision of this Court in Berowra throw any light on the reasoning of the Court of Appeal in this case?

MR GRIFFIN: Your Honour, contrary to what the previous court thought when it adjourned this matter, the decision in Berowra has nothing to do with this case. The reason for that is this. It was the District Court proceedings that looked like Berowra for two reasons. First of all, the District Court proceedings were issued in a six-month moratorium period in which the claimant was not permitted under the Acts to issue proceedings, that being for the purpose of the insurer considering the claim and determining what it wanted to do about settlement.

CALLINAN J: I am sorry, Mr Griffin, I still do not know all the facts. Did Justice Chesterman give a reasoned judgment in this matter?

MR GRIFFIN: Yes, your Honour.

CALLINAN J: I do not have it.

MR GRIFFIN: It is in the application book, your Honour.

CALLINAN J: No, it is not in my application book. All I have is his order, and just as I did not have the Court of Appeal judgment, I had to ask for it.

MR GRIFFIN: Your Honour, in my application book the reasoned judgment of Justice Chesterman starts at page 23. It is an ex tempore judgment but it is a reasoned judgment.

CALLINAN J: I do not have it. I have 22 and then I have page 27. It may not be your fault. It is not your responsibility to prepare it. As I say, I do not have the Court of Appeal reasons. It has never been clear to me precisely what the basis of the strike-out application was. Can I get a copy of Justice Chesterman’s reasons now?

MR GRIFFIN: Yes.

CALLINAN J: It is really hopeless to bring applications here without having a proper record. Thank you. You proceed. I do not want to hold you up. I can look at this quickly.

MR GRIFFIN: Yes. Now, if your Honour looks at page 23, your Honour will see that what had happened was the applicant had obtained a leave order from Judge Noud in the District Court and had then issued a District Court proceeding. Then, subsequently, many months later they issued this Supreme Court proceeding which is the proceeding that - - -

GLEESON CJ: Because they missed the window of opportunity somewhere along the line.

MR GRIFFIN: Because they had not issued the District Court proceeding at the correct time.

CALLINAN J: In purported reliance upon Judge Noud’s leave given in the - - -

MR GRIFFIN: Then they issued this proceeding in purported reliance on Judge Noud’s leave which had also formed the basis for the issue of the proceedings in the District Court. Now, what Justice Chesterman held was that that grant of leave did not justify these proceedings because it had to be a grant of leave from the Supreme Court to justify Supreme Court proceedings.

CALLINAN J: Where does the Court of Appeal deal with that?

MR GRIFFIN: Your Honour, Justice Keane deals with that at - - -

CALLINAN J: Paragraph [21] on page 8 of the reasons? Is that the beginning of it?

MR GRIFFIN: It is at pages 11, 12 and 13, and he holds particularly with reference to the definition of “court” which appears in paragraph [27] that “court” must mean the court in which the proceedings are instituted. Your Honours see there that - - -

CALLINAN J: Well, if they are right about that, then all these other points that Mr Myers seeks to make are irrelevant; is that right?

MR GRIFFIN: But on the day that the matter was before Justice Chesterman my learned friends sought to support the action in the Supreme Court on a second ground which was that the notice of claim was compliant. Now, if the complying notice of claim had been instituted within the limitation period, then he was entitled to issue outside the limitation period on that ground.

GLEESON CJ: Justice Keane said the notice was not compliant.

MR GRIFFIN: Justice Keane said the notice was not compliant. So did Justice Chesterman.

GLEESON CJ: And then there was an argument of waiver floating around somewhere.

MR GRIFFIN: The reason we say that there is no substance in the waiver argument is that what the insurer was doing in relation to that undertaking was simply seeking to impose an additional requirement, that is, an additional requirement of the provision of the HIC document when it came to hand. It was not by its correspondence seeking to waive the requirement that the details of the special damages be furnished.

CALLINAN J: All right. Now, in what precise respects is the notice non-compliant? If the notice is compliant, is the Court of Appeal wrong and was Mr Myers entitled to succeed?

MR GRIFFIN: No, the notice of claim is non-compliant because there was a mandatory requirement that the special damages be actually nominated and the - - -

GLEESON CJ: The notice was non-compliant, it was held, because of the letters “TBA”.

MR GRIFFIN: That is right. Instead of giving the details, the letters “TBA” were inserted there which meant that the details were going to be advised at a later stage. They were never advised in the appropriate time.

GLEESON CJ: Justice Keane says that is a pedantic point but Judge Noud granted leave to overcome that point but they did not take advantage of the leave.

MR GRIFFIN: They did not take advantage of that because they did not act on Judge Noud’s order at the appropriate time. That is what Justice Keane said.

CALLINAN J: What was Judge Noud’s order in relation to that?

MR GRIFFIN: Judge Noud’s order was simply an order giving leave to the applicant to issue proceedings. Now, it was a District Court order so - - -

CALLINAN J: Notwithstanding non-compliance.

MR GRIFFIN: Notwithstanding non-compliance. If a person has not complied, then he can seek the leave of the court to issue notwithstanding non-compliance. They got that leave and all they had to do then was to act in accordance with Judge Noud’s order.

CALLINAN J: How long did they have to do that?

MR GRIFFIN: Well, they had to wait six months and then issue in the period between the expiration of the six months and a later time, but they had plenty of time to do that. It is just that they did not do it correctly. What they did was to issue in the Supreme Court which they could not do because they had a District Court grant of leave.

GLEESON CJ: No doubt they issued in the Supreme Court because they had not complied with the requirements of Judge Noud’s order.

MR GRIFFIN: Maybe they did that, but they could have issued again in the District Court. That is what they should have done because - - -

GLEESON CJ: Is there anything about the limit of the District Court’s jurisdiction that meant it did not cover their claim?

CALLINAN J: It was district, was it not? They were in the wrong district; is that right?

MR GRIFFIN: No, in the District Court the jurisdiction is limited to $250,000 but being in the District Court they can apply to transfer the matter to the Supreme Court. One of things that was wrong about the Supreme Court proceedings that they issued based on Judge Noud’s order was that the Supreme Court proceedings claimed $486,000 which was well outside the jurisdiction of the District Court and for that reason also plainly could not be justified on the basis of a grant of leave given by the District Court.

GLEESON CJ: If leave to appeal is granted in this matter and the appeal is upheld, the effect of that will be to leave on foot proceedings in the Supreme Court.

MR GRIFFIN: That is right, your Honour.

GLEESON CJ: What will happen to the proceedings in the District Court?

MR GRIFFIN: One does not know. That is really for the applicant to determine, I suppose. The fact is, of course, the applicant should never have instituted two sets of proceedings and it was really an abuse of process to do so, as Justice Chesterman mentioned. It is for that reason that this Court should have no hesitation about upholding what the Court of Appeal has done in affirming the judgment of Justice Chesterman in striking out the proceedings.

Your Honours, Justice Chesterman deals with the leave point at pages 23, 24 and 25 and then he proceeds to deal with whether the notice of claim is a complying notice of claim. Your Honours see at page 26 he refers to the regulation which in mandatory terms:

requires that a notice of claim must include –

and the word “must” is used –

the following particulars, namely “full particulars of the nature and extent of the amount of damages sought under each head of damages and the method of calculating each amount”.

The primary point taken by the applicant before the Court of Appeal about this was that it really did not make any difference, the fact that they did not provide those figures, because they were only small amounts and did not really make any difference in the overall scheme of things. But the court held that the purpose of this legislation is to enable the insurer to make an appropriate offer of settlement - - -

GLEESON CJ: The court held that there was non-compliance but that it was probably a silly technical point and the non-compliance was overcome by the discretionary grant of leave given by Judge Noud.

MR GRIFFIN: If they had acted correctly on that, everything would have been all right. Justice Keane described it as pedantic but accurate, the reliance on the invalidity point in relation to the notice of claim. So the correct result, in our submission, is for this application to be dismissed and then for the plaintiff to continue as he may be able with the District Court proceedings.

GLEESON CJ: So far he is ahead in the District Court.

MR GRIFFIN: So far he is ahead.

GLEESON CJ: You are trying to strike out his action in the District Court?

MR GRIFFIN: Yes.

GLEESON CJ: On what ground?

MR GRIFFIN: On the ground that there was no waiver or no applicable waiver and that the proceedings should not have been instituted within the six-month moratorium period. They are separate proceedings and, in our submission, this matter in the Supreme Court was correctly struck out. It was simply a case in which, in order to issue proceedings outside the limitation period, the applicant had to satisfy conditions – let us call them A, B and C. The court held that the applicant did not satisfy any of the conditions and struck the matter out. It did not raise the issue raised in Berowra Holdings. There was no question of the proceedings being a nullity. It was simply a case in which proceedings had been issued which had not been supported by the appropriate statutory preconditions. They had not been satisfied. They are our submissions, if the Court pleases.

GLEESON CJ: Thank you, Mr Griffin. Yes, Mr Myers.

MR INGHAM-MYERS: Your Honours, the pending District Court proceedings are currently justiciable only because of waiver. The proceedings, it is acknowledged, were commenced in the District Court at Brisbane which had no locality jurisdiction. That was the point that was taken by the respondent and that was the necessity for the issue of the second lot of proceedings. The only reason that they are on foot currently is because of the finding of estoppel, because the respondent agreed to the consent order of Judge Noud, allowing the proceedings to be commenced in Brisbane. So there can never be an abuse of process in this case. It is simply that the respondent resiled from the consent that those proceedings are now on foot. So there is certainly no question of waiver.

It is quite clear from the judgment of the Court of Appeal that Justice Keane overlooked the giving of that undertaking. It was dealt with by Justice of Appeal Jerrard and he said that had the undertaking been given, that would have cured the problem, but he overlooked the fact that it had been given.

GLEESON CJ: What page?

MR INGHAM-MYERS: Your Honour, that is at page 35 of the record.

GLEESON CJ: This gets back to the point I was attempting to make earlier. It is a purely factual error upon which you are seeking to rely.

MR INGHAM-MYERS: It is on this issue.

GLEESON CJ: That would mean that the ground for a grant of special leave would be the interests of justice require it.

MR INGHAM-MYERS: Yes.

GLEESON CJ: Of what relevance to that ground is what is going on in Queensland at the moment?

MR INGHAM-MYERS: Your Honour, what is going on in Queensland at the moment falls, as my friend says, completely within the Berowra principle. That is why the Court, when we initially came before the Court, said, “Let’s get our decision down in Berowra and Brighton. You use those decisions before Judge Tutt”. Now, Judge Tutt delivered his decision earlier but coincidentally it is entirely in accordance with Berowra and Brighton.

GLEESON CJ: So Berowra and Brighton support what is going on in your case in Queensland?

MR INGHAM-MYERS: Exactly, yes, and then what the High Court said – and I appreciate it is not binding on your Honours – but what certainly Justice Gummow and Justice Kirby and Justice Crennan, although she did not say too much about the issue, was complicit in what was to be done, “Come back to us as soon you’ve got the District Court decision and as soon as we’ve given the decisions. Let’s get this cleaned up”. The Court said this is costing a lot of money to somebody that should not have to be paying it and, your Honours, if we get the special leave - - -

GLEESON CJ: Yes, and it is impossible to overlook the fact that nobody suggests your client has done anything wrong. Any failure to comply with
the requirements of any legislation is not the result of your client’s personal conduct.

MR INGHAM-MYERS: No, that is so. If it reflects on anybody, it reflects on the lawyers, but we would submit it reflects more specifically on the respondents in the sense that they were the ones that consented to the District Court in Brisbane having jurisdiction and then resiled. They were the ones that entered an unconditional notice of intention to defend and defence in the District Court and, with respect to my friends, it does not take the point of section 305; in fact, just the contrary, because it does not advance reasons - - -

GLEESON CJ: If the Court of Appeal of Queensland declines to grant leave or special leave to appeal from the decision of Judge Tutt, then this case will be dealt with on its merits.

MR INGHAM-MYERS: Well, yes, I am not precisely certain of what your Honour means by that.

GLEESON CJ: Someone will find out whether your client has a right of action for damages.

MR INGHAM-MYERS: On the state of play at the present time, the matter will continue in the District Court because of all of the waiver and estoppel which has now really invested the District Court of Brisbane with jurisdiction. It will be uplifted to the Supreme Court and at the end of the day the plaintiff will succeed. Where the plaintiff will be deprived, obviously out of pocket, is the application to Justice Chesterman which, in our submission, was incorrectly decided, the application to the Court of Appeal, which was incorrectly decided, and two special leave applications, ultimately which we would hope will be correctly decided, and ultimately the final decision of the Court, which will all be nugatory – forced upon us by the respondent, but nevertheless all nugatory.

I think, with respect, it was for that reason that their Honours on the first occasion suggested, “Let’s get back here and get it resolved once and for all so that there is no necessity to do anything else”, because if you look at the judgment of Judge Tutt – and you do not have go beyond that and it is before your Honours if your Honours are prepared to look at it – you will see that Berowra is entirely supportive of his Honour. Although his Honour gave the decision beforehand, his Honour’s decision is in accordance with the District Court judge at first instance in Brighton and in accordance with the decision of the Court of Appeal of New South Wales in both Brighton and Berowra.

GLEESON CJ: Thank you, Mr Myers.

This matter does not raise an issue suitable to a grant of special leave to appeal to this Court and we are not persuaded that the interests of justice require such a grant. We say that particularly having regard to the decision of Judge Tutt recently given in the District Court in Queensland. The application for special leave to appeal to this Court in this matter is dismissed with costs.

We will adjourn for a short time to make connection with Adelaide.

AT 10.59 AM THE MATTER WAS CONCLUDED