Australia Meat Holdings Pty Ltd v Hamling [2007] HCATrans 109 (2 March 2007)

Last Updated: 29 March 2007

[2007] HCATrans 109

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B40 of 2006

B e t w e e n -

AUSTRALIA MEAT HOLDINGS PTY LTD

Applicant

and

MARK HAMLING

Respondent

Application for special leave to appeal

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 2 MARCH 2007, AT 2.02 PM

Copyright in the High Court of Australia

MR J.A. GRIFFIN, QC: May it please the Court, I appear with MR G.J. CROSS for the applicant. (instructed by AK Compensation Lawyers)

MR R.A. INGHAM-MYERS: May it please the Court, I appear with MR E.J.C. HOWARD for the respondent. (instructed by Trilby Misso Lawyers)

HAYNE J: Yes, Mr Griffin.

MR GRIFFIN: Your Honours, in this case the Court of Appeal, with respect, misconstrued and misapplied the decisions of this Court in Berowra Waters and Brighton, I will not give the full names. Your Honours will recall the decisions. Your Honours were both members of the Court. You will recall that those cases considered the Workers Compensation Act 1987 (NSW).

HAYNE J: Exactly so. Those were decisions about other legislation. Surely the relevant starting point was the legislation in issue here, not what this Court said about other legislation.

MR GRIFFIN: That is correct, your Honour, and the legislation here is at pages 31 and 32 of the application book and it provided that a worker could issue proceedings against his employer only if one of a number of circumstances existed, and I emphasise the words “only if”. Those words were contained in section 302 of the Act.

Following the Court of Appeal’s decision that the notice of claim issued by the claimant in this case was what was referred to as a non-complying notice, there was only one of those circumstances that was available and that was the one which provided that proceedings could issue if the leave of the court was first obtained, but part of that provision enabling proceedings to issue in those circumstances provided that the proceedings could only issue after the expiration of six months following the grant of the leave.

The legislation thus required that this period of six months be allowed to elapse before the proceedings could be issued and provided that they could only be issued if the period had been allowed to elapse. These proceedings were issued within the six month period, in fact, almost immediately after the grant of leave was obtained and they were thus issued in defiance of the statutory prohibition.

Now, your Honour Justice Hayne said that the legislation was different. In fact, the provisions were not dissimilar. The Berowra Waters and Brighton provision also provided for a six months moratorium on the issue of proceedings. In that case it was six months from the date of the accident as opposed to six months from the date of a grant of leave.

The apparent purpose of these provisions is to enable the insurer to investigate the claim and determine its attitude to the claim and perhaps settle it without any costs being incurred in legal proceedings issued by the claimant. The legislation in both States made it perfectly clear that there was no entitlement to bring the action inside the six month period. In the case of both sets of legislation that was clear by reason of the wording. Under the New South Wales Act it said there was only an entitlement to sue in those circumstances. Under the Queensland Act, as I have said, you could issue proceedings only if one of the circumstances in section 303 applied.

In Berowra Waters this Court addressed the question, what if the proceedings are in fact instituted within the six month period, and the Court held, firstly, that such proceedings were not a nullity. They were liable to be struck out, but there were not a nullity. The Court also held that, as the proceedings were not a nullity, the defendant could by its conduct be precluded from taking the point. The Court held that waiver was not applicable or appropriate and, rather, it referred to cases in which a defendant failed to plead a limitation statute such that after a lapse of time it might not be able to persuade a court to allow it to amend its pleading to take the limitation point.

In relation to the decision of the court as to whether or not the defendant was precluded from taking the point, the Court referred to the determination by the judge as discretionary, as of course it is. But the Court in Berowra Waters at no stage suggested that the court was empowered to dispense with the application of the statutory requirement on the basis that the purpose of the statutory requirement had been satisfied otherwise than by compliance with the statute, nor did the Court suggest that a court faced with an application to strike out a proceeding issued in defiance of the statutory provision had a discretion to dispense with the application of the provision in the circumstances of the statute not having conferred upon the court a discretion to dispense with the provision.

That is the exercise that the Court of Appeal performed in this case and which it apparently considered Berowra Waters authorised it to perform. The Court of Appeal in this case held that the two grounds that were relied on by the District Court judge in refusing to strike out the proceedings, namely, that the notice of claim was complying and that there had been waiver, were both unsustainable.

Then Justice Jerrard with whom the other members of the court agreed proceeded to hold that the order of the District Court judge refusing to strike out could have been sustained on another ground, namely, that the purpose of the statutory provision had in this instance been served and that therefore the proceedings ought be permitted to stand. Justice Jerrard conducted a balancing exercise to determine whether it was just that the statutory provision should be applied in the circumstances of the case as if the court had a power to dispense with the statutory provision.

The weighing up of factors for and against the claimant in this process that his Honour followed is to be found at paragraph [22] of the judgment which appears at page 8, I think it is, of the application book.

CRENNAN J: Page 35.

MR GRIFFIN: I am sorry, your Honour, page 35. Thank you, your Honour. It actually starts at paragraph [21]. At paragraph [20] his Honour identified the matters that he thought were adverse to the claimant and the first was that he had contravened section 303.

Now, in passing, one should say that that was a very strange factor to bring into account in any such exercise because the issue only arises if the statutory provision has been contravened. It hardly seems correct, therefore, to hold it against the plaintiff in this exercise that he has contravened the statute. His Honour then identified another factor adverse to the plaintiff, namely, that he could readily have complied with the Act. All he needed to have done was to have withdrawn the District Court proceedings that he had issued and to issue another District Court proceeding at a time when the statute permitted him to do so and before the limitation period expired.

The plaintiff had in fact issued a Supreme Court proceeding at that time, but that was struck out by the Supreme Court on the ground that the plaintiff could not support Supreme Court proceedings by a grant of leave made in the District Court. The plaintiff then appealed against that decision. It was upheld by the Court of Appeal and then the plaintiff sought special leave and that was refused.

At paragraph [21] of the judgment his Honour turned to the factors that he saw as being in favour of the plaintiff. The first one he identified is that the proceedings were not a nullity. This again was a strange factor to bring into account. Certainly following Berowra Waters no proceedings issued in defiance of the prohibition would be classed as a nullity. That factor did not distinguish this case from any other proceedings issued in defiance of a statutory prohibition.

Then his Honour proceeded to hold that the object of the provision was to enable the insurer to investigate the claim. He then proceeded to hold, in effect, that in this case the insurer had been given ample detail about the claim and that whilst the claim had issued within the six month period, he had not served his proceedings until some 11 months after the issue of the proceedings and, accordingly, in his Honour’s view, the insurer had had the benefit of the time period that the statute intended it to have to investigate the claim. So as it had the benefit of the period and received all the documentation, the statutory purpose had been achieved.

We submit that there is simply nothing in Berowra Waters or Brighton that authorises that kind of exercise. Berowra does not decide that a person is entitled to institute or proceed with an action in breach of the statutory provision. It merely decides that the court is not deprived of jurisdiction on a count of the proceeding having been issued in non-conformity with the provision. From paragraph [37] of the judgment your Honours said:

The upshot is that the effect of non-compliance with s 151C will depend in each case upon the actions of the defendant in the context of the relevant Rules of Court.

So the Court did not say that the effect of non-compliance will depend on the Court’s assessment of whether the statutory purpose was apparently satisfied. The only circumstance in which the Court envisaged that the proceedings could continue was if the defendant had precluded itself from taking the point.

Now, we address that issue in paragraphs 24 and 25 of the outline. Your Honours will recall that in Berowra Waters the claim had been filed in defiance of the statutory provision on 23 November 2001. The point was not taken until 2003, a day before the matter was fixed for hearing. In Brighton the claim was filed in July 2001 and no point at all was taken until August 2002 and no effort was made to amend the defence until July 2003.

In those circumstances the High Court confirmed that it was too late for the defendant to object to the proceedings. But this did not mean, of course, that the Court had in some way dispensed with the statutory requirement. It simply meant that the defendant had allowed so much time to elapse that it was precluded from relying on the requirements.

So Berowra Waters and Brighton decide no more than that the court is not deprived of jurisdiction on account of the proceeding having been issued in non-conformity with the statutory provision and that the defendant may be prohibited by dilatory conduct from objecting to the fact that the proceedings were instituted in such defiance. It does not hold that the court can excuse the plaintiff from non-compliance with the statutory provision in the absence of a provision enabling the court to do that.

In this case there was only one piece of conduct by the defendant that was referred to. That was the alleged non-pleading of the breach of the statute when the defence was filed. The defence, in fact, did plead that the proceedings that were instituted did not comply with the WorkCover Queensland Act, but it did that in those broad terms and it is argued by the claimant or the respondent that because of that non-specificity, the effect of that is that there is no pleading at all, but the point was, in fact, taken in that general way.

More significantly, when that pleading was filed the application to strike out the proceeding, which was a timely application, was on foot. It was never withdrawn. It was proceeded with and in those circumstances, even if the pleading could be said not to have taken the point, that could not possibly amount to precluding conduct of the kind that constituted preclusion in Berowra Waters and Brighton. I should also mention that the respondent’s outline alleges that there was an agreement between the parties to the effect that if the Supreme Court proceeding was withdrawn this Court proceeding could proceed.

That is disputed and it will be noted that the Court of Appeal did not rely on any agreement. The parties certainly did not act on any such alleged agreement and the respondent never did withdraw the Supreme Court proceeding and, in fact, as I said, it appealed the striking out of that proceeding. When that proceeding was struck out and the matter was taken before this Court, Chief Justice Gleeson did make the remark that our learned friends have referred to, but in making that remark he was saying nothing about the correctness or otherwise of Judge Tutt’s decision.

The circumstances surrounding Judge Tutt’s decision were not before him. He was merely saying that it was relevant that at that stage the respondent still had other proceedings on foot. I think he said, “Well, you are still in front at this stage.” So, the Court simply has no power to dispense with the statutory requirements and that is in no way altered by the holding in Berowra Waters that such proceedings are not a nullity. In conclusion, your Honours, the legislation stringently limiting access to damages is becoming more and more commonplace.

Close statutory control of access to damages is now seen in many areas. It is certainly not confined to legislation relating to employees. There is motor vehicle legislation that takes the same form. Here in Queensland there is similar legislation which applies to personal injury actions generally. In that context, the assumption by the Court of Appeal in this case that Berowra Waters authorises an exercise to enable the judge to excuse a party from non-compliance with the legislation, and that is to put him in the same position as he would have been in if he had complied with the legislation, is, with respect, quite fallacious and would lead to inquiries which are entirely inappropriate.

HAYNE J: Is that a proposition which is expressed in other words as being that want of compliance with the procedural stipulations in the legislation is necessarily fatal?

MR GRIFFIN: It certainly means that the proceedings are issued in non-compliance with the legislation and therefore - - -

HAYNE J: The consequence you attribute to that fact is that the proceedings should inevitably be terminated.

MR GRIFFIN: They should be struck out in the absence of - - -

HAYNE J: You stake that proposition on Berowra. Did not Berowra hold precisely to the contrary of that proposition?

MR GRIFFIN: With respect not, your Honour. It simply held that the proceedings were not a nullity.

HAYNE J: Just so.

MR GRIFFIN: It was stated quite specifically that they were liable to a strike-out application and it did not at any point authorise the exercise that was conducted here. Your Honours, in addition to the exercise not being contemplated by the case, it creates a considerable practical problem in considering the validity of proceedings in cases that have not been yet the subject of judicial assessment. Unless it is possible to predict how the Court will weigh up these various factors, including the purpose of the piece of legislation in issue, no one would know whether the proceedings were valid or not.

Proceedings would have been issued in defiance of the statutory provision but it would depend on how the Court weighed up the various factors involved as to whether or not they were properly sustainable proceedings. This uncertainty would, in our submission, arise in every case in which the proceedings had been issued in defiance of the statutory purpose.

HAYNE J: Do you accept that the application you make is one concerning a matter of practice and procedure in an interlocutory application?

MR GRIFFIN: Your Honour, it goes more than that. It is really a question of the role of the Court and the role of the legislature. It really raises the question of whether the Court has the power to dispense with the application of legislative provisions and that is really more - - -

HAYNE J: That seems to be a proposition which amounts to the proposition that proceedings issued without compliance with the procedures are necessarily and irremediably bad.

MR GRIFFIN: No, not at all, your Honour. The reason that they were held not to be a nullity is that the court, as you will recall, said there were all sorts of difficulties with the notion that proceedings are a nullity or that the Court does not have jurisdiction. There are different meanings that are attributed to the words “nullity” and “jurisdiction” and therefore the Court resists any notion that proceedings that are issued in the Registry can be properly classified as a nullity but that does not mean that the statutory provisions do not continue to govern the proceedings, particularly when the legislature has made it clear that those provisions are mandatory provisions. They are our submissions, if the Court pleases.

HAYNE J: Yes, thank you, Mr Griffin. We will not trouble you, Mr Ingham-Myers.

This application concerns an interlocutory application made in the courts of Queensland and the fact that the subject matter of the application is of that kind weighs heavily against the grant of special leave to appeal.

In our opinion, the decision of the Court of Appeal is not attended by sufficient doubt to warrant a grant of special leave to appeal in the matter. In particular, we are not persuaded that anything in the decision of the Court of Appeal amounts to a misapplication of the decision of this Court in Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; [2006] 80 ALJR 1214, (2006) 228 ALR 387. Accordingly, special leave is refused. It must be refused with costs.

The Court will adjourn to enable the establishment of the video link to Darwin.

AT 2.22 PM THE MATTER WAS CONCLUDED