John Holland Pty Ltd v Victorian Workcover Authority [2009] HCATrans 99 (13 May 2009)

Last Updated: 18 May 2009

[2009] HCATrans 099

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M16 of 2009

B e t w e e n -

JOHN HOLLAND PTY LTD

Plaintiff

and

VICTORIAN WORKCOVER AUTHORITY

Defendant

Summons for Directions

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 13 MAY 2009, AT 9.54 AM

Copyright in the High Court of Australia

MR M.D. WYLES: If your Honour pleases, I appear with MR S.P. DONAGHUE for the plaintiff. (instructed by Harris & Company)

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

HIS HONOUR: Yes, Mr Wyles.

MR WYLES: I have an application to make, your Honour, to ask your Honour to adjourn this matter for a short period of time. The reason I make that application is a bittersweet one. Mr Jackson has been briefed on Monday to lead Mr Hatcher and Dr Donaghue in this matter and in the circumstances, if your Honour would see fit, some short period of time to allow Mr Jackson to review the stated case is sought.

HIS HONOUR: Yes. What is your attitude, Mr Hanks?

MR HANKS: Bittersweet indeed, your Honour. We do not consent to the adjournment. We are, as your Honour would understand, anxious to have the matter progress. The parties have drafted a case stated, for all its imperfections, and we had thought that we might make some progress, with your Honour’s assistance, in settling some aspects of that document today. Your Honour understands that we are anxious to have this matter heard as quickly as possible.

HIS HONOUR: Yes.

MR HANKS: There are prosecutions that are pending and these proceedings are essentially delaying the hearing of those prosecutions.

HIS HONOUR: Is it desirable or not desirable that I offer any comment on the document that I have presently seen?

MR HANKS: It is desired by me, your Honour.

HIS HONOUR: Yes. Mr Wyles?

MR WYLES: Desirable, your Honour.

HIS HONOUR: Yes. What struck me about the stated case was the generality of question 1 compared with the particularity of question 2. Are we really fussed about question 1 or is it question 2 that is the focus for the parties? Those are questions that the parties will no doubt have regard to. A very minor aspect about question 2, I would have thought it should be prefaced by “if the answer to question 1(a) or (b) is no”, but really, again, I am perhaps demonstrating only that I have attempted to read the document.

Question 4, again I am struck by the generality. I assume from the defence that this is intended to capture the issue presented by the amended defence, particularly in, is it, paragraph 25A of the amended defence where there is a set of pleas that say, well, even if there is a 109 issue, all that means is that the exclusivity of approach mandated under the State Act is removed. Anybody can bring the proceedings and, therefore, what are we fighting about, is the rather tendentious method of putting the plea. I am not sure that question 4 quite captured that set of issues. It may be that it does and does sufficiently. If it does, so be it.

Otherwise, the alarm that question 1 was ringing in my mind was that we were being asked to embark on a rather extended advisory opinion about the intersection of these two pieces of legislation, or supposed intersection, that went beyond anything that was raised by the matter. Now, again, those are matters that the parties may choose to take account of and deal with, they may be matters that the parties think are idle captious comments that are to be studiously ignored and swept aside.

MR WYLES: I am sure not, your Honour, and certainly for our part, we would like to give some further thought to each of the matters which your Honour has raised, particularly question 4.

HIS HONOUR: Yes. Now, how much time are we looking at, Mr Wyles?

MR WYLES: As I understand it, your Honour, conferences have already been appointed, so if a period of two to three weeks were available, your Honour.

HIS HONOUR: We have sittings the next fortnight. The week following, commencing the 1st, there are some meetings in Canberra during the week which I am to attend. From my own point of view it would be more convenient to deal with it in the week of the 9th. Unless I do it by video link, either.

MR WYLES: Subject to anything Mr Hanks has to say, your Honour, we would certainly to be content for the, I think your Honour put it previously, the week commencing Tuesday the 9th?

HIS HONOUR: Would it be possible to say to the parties that I would like the draft stated case, to the extent to which it is agreed and an indication of the extent to which it is not with alternative proposals, filed by Friday, 29 March?

MR WYLES: By 29 May, your Honour.

HIS HONOUR: Sorry. By 29 March would be really ambitious. By 29 May?

MR WYLES: On my instructions, yes, your Honour.

HIS HONOUR: Yes. Mr Hanks, would that be possible, do you think?

MR HANKS: Yes, your Honour, it will be possible.

HIS HONOUR: Do I need to make any formal direction to that effect or simply indicate to the parties that I will be grateful if they could file either an agreed stated case, alternatively, a stated case agreed to the extent to which it is together with their alternative proposals in respect of that case not later than the 29th. If the parties have reached agreement, then it may be that they would consider submitting a consent order for reference in. I do not say that I will make that consent order without looking at the stated case and it may be that I would wish to call the parties back anyway. We might be able to accelerate the process if the parties would be good enough to follow that course.

MR WYLES: Certainly. For our part, your Honour, an indication is more than sufficient.

HIS HONOUR: Yes. If I simply adjourn the matter to a date to be fixed in the week commencing 9 June next reserving the costs?

MR HANKS: Yes, your Honour.

MR WYLES: If your Honour please.

HIS HONOUR: If the parties could liaise with the Registry about a day that will be your time that will be convenient to both sides, that would be of advantage.

MR HANKS: Your Honour, I assume our learned friends have no instructions on the point that I am about to raise, but there is a risk, as I understand it, the proceedings pending in New South Wales may make an application for their removal and that may raise issues that are parallel to the issues in this proceeding. That may complicate matters.

HIS HONOUR: If it were so, if there were to be a removal, from what court would the removal occur?

MR HANKS: My friend might be able to answer that, your Honour.

MR WYLES: I did wish to inform your Honour about this. As I understand it, John Holland is proposing to make an application to remove proceedings from the New South Wales Industrial Court to the High Court, but I do not have the conduct of that application, your Honour. As to what the consequence of that might be, we do not know. I was concerned, one, to make your Honour aware that that is the present plan, but beyond that we are in the realm of speculation and I did not propose to take up your Honour’s time.

HIS HONOUR: But if there were a removal, it may be that there would be advantage in joining the two proceedings.

MR WYLES: It may be, your Honour.

HIS HONOUR: The parties would need to be in a position to inform the court considering the removal application of where this process is up to so that, if there were to be an order for removal, the court ordering removal, or I, can give further consideration to whether this proceeding should be joined. Because although the root question may be very similar, may even be identical, it may be desirable to have both forms of legislation before the Court at the one time so that the Court can deal with it, if, that is, the proceedings in the Industrial Court are ripe for removal.

MR WYLES: Yes, your Honour.

HIS HONOUR: There we are. That is something about which I know nothing. I simply make an order for adjournment in the form proposed, that is, adjourn to a date to be fixed in the week commencing 9 June and reserve the costs.

MR WYLES: If your Honour pleases.

HIS HONOUR: Do parties wish to be heard further?

MR WYLES: No, your Honour.

MR HANKS: No, your Honour.

HIS HONOUR: Very well. Adjourn the Court.

AT 10.06 AM THE MATTER WAS CONCLUDED