John Holland Pty Ltd v Victorian Workcover Authority [2009] HCATrans 131 (11 June 2009)

Last Updated: 16 June 2009

[2009] HCATrans 131

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No M16 of 2009

B e t w e e n -

JOHN HOLLAND PTY LTD

Plaintiff

and

VICTORIAN WORKCOVER AUTHORITY

Defendant

Directions

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON THURSDAY, 11 JUNE 2009, AT 9.32 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC: If your Honour pleases, I appear with my learned friend, MR S.P. DONAGHUE, for the plaintiff. (instructed by Harris & Company)

MR P.J. HANKS, QC: If it please your Honour, I appear with MS F.I. GORDON for the defendant. (instructed by Corrs Chambers Westgarth Lawyers)

HIS HONOUR: In this matter the parties have submitted a draft case. There were a number of matters I wish to take up with the parties about, particularly the questions in the case and the issues I have can, I think, be expressed in this way. Perhaps if I, in effect, list the interrogatories and then allow the answers to be given in such fashion as you wish. What is it that question 1 is adding to question 2? It is not immediately apparent to me whether there is some new or larger issue that is sought to be propounded through question 1 if, as I would understand it, question 2 is directed or to be directed not as it is presently framed prospectively but retrospectively.

By that I mean, I understand question 2 to be directed to asking to the extent to which any and which of the identified sections of the State Act, sections 7, 8 and 130, purported to authorise the particular inspector, who is referred to, I think, in paragraphs 8 and 9 of the draft, to bring the proceedings that are referred to in paragraph 9 of the draft against the plaintiff where any and which of those provisions, that is, sections 7, 8 and 130, invalid within section 109, but I would understand what is presently question 3 to be asking, in effect, if yessed to, that is, if yes there is pro tanto invalidity of the identified sections, is the proceeding nonetheless competent, and then question 4 would be a question about costs. But those are the problems that struck me, particularly just what is in question 1 that I am not identifying, Mr Jackson.

MR JACKSON: Yes, your Honour. Could I just endeavour to put it shortly. It relates partly to the general law and the intersection of the general law in section 109, to put it briefly. What I mean by that more specifically is that under the general law, absent there being a provision of an Acts Interpretation Act that dealt with the effect of repeal of legislation, one could not – and this is one of the Dignan cases in this Court – prosecute once an Act had repealed in respect of events that have taken place in contravention of the Act before that date.

Now, of course, the question which arises in the present case is whether the State Act, if we are otherwise correct, the State Act being one that would not have an application after the Commonwealth Act came into force, whether the same notion is applicable. That is the underlying concept. The expressions, your Honour, “liable to conviction” – the

expression “liability” is one that really derives from the observations of Justice Dixon in that case. I will give your Honour a greater reference, if your Honour wishes it, but that is the underlying notion of question 1.

HIS HONOUR: Right.

MR JACKSON: Now, your Honour, so far as question 2 is concerned, the position is, I think – and I am not entirely sure if I quite grasp what your Honour was putting to me in this, but may I just say this. The position in relation to question 2 is and does seem to put, in a sense, a little more broadly than perhaps the case necessarily involves, the question whether it is possible to bring the current State proceedings. Now, your Honour, paragraph 3 is, in a sense, a particular of paragraph 2 in a way. But, your Honour, I would accept that there is a degree of – I hope I do not use the expression incorrectly – covering the field in 2 and of digging out a part of it in question 3. Your Honour, we do not particularly insist – and I use that term in the relative term – on question 2, but that is the relationship between them.

HIS HONOUR: I am not concerned to see question 2 disappear, Mr Jackson. It struck me, reading it, that it seemed to be asking about future events rather than being tied back to the particular prosecution that has been launched. That may not matter.

MR JACKSON: Your Honour, so far as any other matter is concerned, there is no issue, as we would understand it, but it is simply putting the proposition in perhaps more general terms than, in a sense, in paragraph 3.

HIS HONOUR: Yes. Well, then, is there anything else that, from your side of the record, needs to be drawn to attention about the form of the stated case?

MR JACKSON: We think not, your Honour.

HIS HONOUR: Yes. Mr Hanks, what do you say?

MR HANKS: I do not think I can add anything useful to what Mr Jackson has said, your Honour, other than our understanding is that the intention of question 1 is to address that issue of liability to conviction and the point of question 2 is to address, one might say, the process by which that liability could be realised. Thank you, your Honour.

HIS HONOUR: Yes. Well, if the parties would be good enough to submit an engrossed form of the stated case substantially to the effect of the draft before me and accompanied by the necessary annexures, I will execute it and the matter can go into the list of cases for fixing. It may be, I do not

know, that we would be looking to fix the matter in the middle of the second half of this year, perhaps September/October, I just do not know, but those are matters that the Registry can take up with counsel and we can proceed from there. Mr Hanks?

MR HANKS: Yes, your Honour. I had discussed with my friend, Mr Jackson, the possibility of varying the standard practice direction for the filing of written submissions in this matter. Is it appropriate that I take that up now?

HIS HONOUR: Yes, at least raise it.

MR HANKS: Thank you, your Honour. I raised with Mr Jackson the value, at least from the point of view of the defendant, of having more than three days in which to respond to the plaintiff’s argument, which we have not seen yet, this being in the original jurisdiction of the Court, and to that end, varying one of the times in the practice direction so as to require the plaintiff to file its outline of submissions not 10 days but 12 days before the date fixed for hearing.

HIS HONOUR: The other notion that I would be glad if counsel would give some thought to is building in the interveners, if there are to be interveners, in a way that will perhaps more usefully allow a joinder of issue by the parties with whatever stance any intervener may take.

MR HANKS: We have been informed that Queensland at least will be intervening.

HIS HONOUR: Yes. It would not astonish me if it attracted a degree of interest, but there we are. Do I need to make directions about these matters, Mr Hanks? I would prefer it if I simply left it, in a sense, to counsel to work out a timetable. There is evident virtue in allowing a little longer between each step if that will allow a better set of written submissions that identified a point more carefully and more precisely.

MR HANKS: Yes, your Honour. We will attend to that, I think.

HIS HONOUR: Yes.

MR JACKSON: Your Honour, if I can just add one thing to what has been said by my learned friend, and that is that sometimes intervening States have differing views from those and they sometimes take a little time to deal with by way of reply as well.

HIS HONOUR: Exactly so, and thus if a rather more extended timetable were to be agreed between the parties and notified to potential interveners as well as any who have given notice of an intention to intervene in ample time, so much the better. But, as I say, I think it better not to deal with these matters by direction at this stage. If push comes to shove, then so be it.

MR JACKSON: Your Honour, just one other matter I suppose on the unseemly question of costs. Would your Honour, if necessary, treat the costs of today of the case stated as being part of the costs in due course.

HIS HONOUR: We deal with them in the cause? Yes. Is there anything else then in relation to the first matter in the list?

MR JACKSON: Nothing, your Honour, no.

AT 9.43 AM THE MATTER WAS CONCLUDED