Hastings Deering (Australia) Ltd v Smith [2007] HCATrans 50 (9 February 2007)

Last Updated: 23 February 2007

[2007] HCATrans 050

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Darwin 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

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM DARWIN BY VIDEO LINK TO CANBERRA

ON FRIDAY, 9 FEBRUARY 2007, AT 9.47 AM

Copyright in the High Court of Australia

MR S.J. GAGELER, SC: Your Honours, I appear with MR P.M. BARR, QC for the applicant. There is no appearance for the respondent. (instructed by Hunt & Hunt)

KIRBY J: There was a communication, I think, from the respondent.

MR GAGELER: I am terribly sorry.

MR N. CHRISTRUP: If the Court pleases, I appear on behalf of the respondent to that matter. (instructed by Ward Keller)

KIRBY J: Yes, Mr Gageler.

MR GAGELER: Your Honours, this case is very much intertwined with the previous case in the sense that it was the construction of the Northern Territory - - -

KIRBY J: It is intertwined but it is not intertwined very much. I mean, there is no rose bush that links them in thorns. You have not sought to protect yourself in respect of any outcome in the first case so you are just raising the point of statutory interpretation, are you not?

MR GAGELER: Your Honour, the point of statutory interpretation was put by Mr Barr to your Honour and to other members of the Court on the previous hearing of the special leave application. The application was - - -

KIRBY J: That was when the Court was differently constituted by the Chief Justice, Justice Gummow and myself.

MR GAGELER: Yes. The application was then adjourned because if the amending legislation was valid then the point was moot. Given that the amending legislation has been declared invalid while that position remains, the point in the present case remains a live issue - - -

KIRBY J: It has not been declared invalid, has it?

MR GAGELER: I mean it has been judicially determined to be invalid in the other proceedings. So when I say inexplicably intertwined, your Honours, it is almost a complete circle. You see, if it is correct that the amendment is invalid, then the point of construction in the present case remains a live issue. But if the construction adopted in the present case is wrong so that the amendment was unnecessary and the amendment was on the declaratory, then it is very difficult to see how there could be an acquisition of property in the amendment. The case is really - - -

KIRBY J: Yes, but why would this Court get into the question of the interpretation of the Northern Territory legislation given that the interpretation which was favoured was a beneficial interpretation and even if it does not acquire property, it is still an interpretation that was open to that Court.

MR GAGELER: Your Honour, I do accept that we are concerned with a Northern Territory Act and a Northern Territory Act cast in terms that do not appear to be reproduced in a relevantly similar form in other jurisdictions.

KIRBY J: But all that would follow from not giving you special leave would be – and your success in the challenge to the constitutional adjudication in the other cases - - -

MR GAGELER: But if I am successful in the other case, then it does not matter, this case does not matter at all. If I am not successful in the other case, then this case matters.

KIRBY J: But I looked at your grounds of appeal and it does not seem to have any contingent ground relevant to the first application we heard this morning.

MR GAGELER: Your Honour is talking about the grounds of appeal in the present case?

KIRBY J: In the present application, yes.

MR GAGELER: No, the contingency on the - - -

KIRBY J: You just want to have the High Court redetermine a matter of the interpretation of a regular amount of pay or weekly amount of pay.

MR GAGELER: I confess, your Honour, that is exactly what I want and I confess that is - - -

KIRBY J: Why would we do that?

MR GAGELER: Because it is a – well, for two reasons, your Honour. One is it is narrow point of statutory interpretation - - -

KIRBY J: That is a reason why we would not do it.

MR GAGELER: Well, it cuts both ways. It does not take long to do it.

KIRBY J: A very narrow little point of Northern Territory law.

MR GAGELER: Exactly, and I try to spin that in my direction. Your Honour might see it cutting the other way but it will not take long, can I put it that way. The other point is that it is in practical terms, as your Honour would have seen from the second reading speech for the amending Act, it would be in practical terms a point of quite some significance financially to the Territory and as to the administration - - -

KIRBY J: Yes, but what if we think that on balance the view taken by the Court of Appeal and the primary judge - I think it was Justice Thomas - were certainly open and the preferable interpretation because of the principle that this is a compensation statute and it is read broadly. If we are of that view that you have not demonstrated an error and that therefore you have not got really substantial prospects of success, why would we get into this very narrow little point?

MR GAGELER: Your Honours would not. The argument as to the construction we put and to why the Court of Appeal was wrong was put on the previous occasion but if it would be of assistance I can restate it. I do accept that that is a threshold, your Honour.

KIRBY J: We do understand your argument. Speaking for myself, if I were in an intermediate court I would accept this as an arguable case, but we are in the national final Court.

MR GAGELER: I understand, your Honour. All I can say is really the two things that I have said already. One is, in practical terms it is a very important point and, two, it will not take long to argue. If your Honours were to set the other case down for one day, within that day - and I would think within half an hour and possibly even just in writing - this case could be dealt with as well.

KIRBY J: What do you say about the fact that the legislature in the Northern Territory has acted on the assumption of the correctness of the statute and by its statute – by the Act – has proceeded to accept that this is the law?

MR GAGELER: Yes. Your Honour, that is terrific, if the Act is valid. If the Act is invalid, then it goes nowhere.

CALLINAN J: Let us just start over again. In any event, the provision is ambiguous. It seems to me to have been an open construction.

MR GAGELER: I cannot deny that it is ambiguous. I cannot deny that it is an open construction. I cannot deny that it is a narrow point.

CALLINAN J: There is an interest in finality in litigation. The personal interests of the worker here are certainly in the interests of finality.

MR GAGELER: I think I have said what I can say, your Honours.

KIRBY J: The Court does not need your assistance in this application.

Like most issues of statutory construction, by the time they reach this Court, the interpretation of the subject legislation urged by the applicant is arguable. The available arguments have been put persuasively both in the written and oral submissions. On the other hand, the preference of the primary judge in the Supreme Court of the Northern Territory, Justice Thomas, and of the Court of Appeal, Chief Justice Martin, Justice Angel and Justice Priestley, for the broader interpretation is also persuasively presented. It conforms to the general principle that beneficial workers’ compensation legislation should, in cases of doubt, be given a broad reading.

In all the circumstances, we are not persuaded that the application enjoys reasonable prospects of success or that it is a matter suitable for the grant of special leave and accordingly special leave is refused.

Does the respondent seek costs?

MR CHRISTRUP: No, your Honour, that is a matter that has been arranged between the parties already, so a cross-order is not necessary.

KIRBY J: I understand, very well. No order will be made as to the costs.

AT 9.56 AM THE MATTER WAS CONCLUDED