Wallaby Grip Limited & Anor v WorkCover Queensland [2021] HCATrans 128 (13 August 2021)

Last Updated: 19 August 2021

[2021] HCATrans 128

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B13 of 2021

B e t w e e n -

WALLABY GRIP LIMITED

First Applicant

WALLABY GRIP (B.A.E.) PTY LTD (IN LIQUIDATION)

Second Applicant

and

WORKCOVER QUEENSLAND

Respondent

Application for special leave to appeal

GAGELER J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY AND MELBOURNE

ON FRIDAY, 13 AUGUST 2021, AT 11.28 AM

Copyright in the High Court of Australia
MR D.J. HOOKE, SC appears with MR D. KLINEBERG for the applicants. (instructed by YPOL Lawyers)

MS R.M. TRESTON, QC appears with MR K.F. HOLYOAK for the respondent. (instructed by BTLawyers)

GAGELER J: Mr Hooke.

MR HOOKE: Yes, thank you, your Honours.

GAGELER J: I must say that you have expressed yourself with admirable clarity in your written submissions and the point is a very short one. When did this provision get inserted into the Act, do you know?

MR HOOKE: Your Honour, my learned friend may be able to better answer that. The provision has been there for some time. I know it was addressed by the Court prior to it being amended in 2010 in WorkCover Queensland v Amaca Pty Ltd [2010] HCA 34; 241 CLR 420. It has been amended since then but not in a way that affects the question of construction that this matter raises.

GAGELER J: It is a peculiarly Queensland provision, as I understand?

MR HOOKE: Your Honour, it is, although it has features in common with provisions that are in force in every other State and Territory bar South Australia. There is a commonality, although not an identity of provisions - there is a commonality of concepts in terms of circumstances giving rise to two matters. The textual references may or may not ultimately matter.

GAGELER J: Your basic point is that the Court of Appeal was wrong in saying that there were two sets of circumstances. There is only one set of circumstances. But, if that is accepted, why does one read the jurisdictional limitation into subclause (2)(a)?

MR HOOKE: Because it comes in through the use of the word “injury”, your Honour, which is a defined term in section 32, and an injury under the Act only arises if it is an injury sustained in employment which has the requisite connection to the State of Queensland. So, one has two matters that have to be established. The first is that there are circumstances creating both an entitlement to compensation and a liability to pay damages and, secondly, that they both attach to an injury within the meaning of section 32 of the Act. So, that is how the territorial aspect of it comes in.

That is not to say, of course, that a tort that is committed outside the territorial bounds of Queensland cannot give rise to a liability to pay damages for an injury under the Act. But that is to conflate, we say, the question of tortious liability with the construction of the Act.

The other difficulty is, of course, your Honours – and this is where the fact that these provisions in their precise terms are Queensland provisions we say is not a reason against the grant of special leave - that is that the construction that the Court of Appeal has given subsection (1) gives it a very, very wide‑ranging and expansive reach and that is in the context of provisions which are part of a national co‑ordinated scheme of workers’ compensation legislation.

The effect of construction and the error that we say the Court of Appeal has committed is that it shifts the entirety of the liability for injury sustained in employment connected to Queensland onto third parties who are often – not always, but often – the statutory workers’ compensation funds of other States and Territories. That is why it becomes a matter of far greater importance than a local provision might ordinarily be.

GAGELER J: Where is the territorial link in section 32?

MR HOOKE: Your Honour, the link comes through ‑ ‑ ‑

GAGELER J: It seems to me that the link comes through section 113, if it comes at all.

MR HOOKE: It does, your Honour, because an injury is, in section 32(1), “injury arising out of, or in the course of, employment” if the employment is a significant contributing factor and section 113 provides that:

Compensation under this Act is only payable in relation to employment that is connected with this State.

GAGELER J: That certainly gives you the link, the territorial link in subclause (1). It does not so readily translate to a link in subclause (2).

MR HOOKE: Your Honour, we submit that if compensation is payable in respect of an injury under the Act then the injury must be one that conforms with the obligation to pay compensation. So, in our submission, it only arises – one only gets to engage subsection (1) of section 207B if one has an injury that has the requisite territorial connection. It can only then be in respect of such an injury that subparagraph (2) can be engaged.

GAGELER J: Now, the Court of Appeal in paragraph [24] describe the injury here, mesothelioma, as “an indivisible injury”. Is that a correct characterisation?

MR HOOKE: It is as far as it goes, your Honour. That is the injury that the respondent has treated as being the compensable injury and that would conform with the definition of “injury” as a disease in section 32, although the respondent never identified which element of section 32 it says is engaged. It would appear to be section 32(3)(a):

a disease contracted in the course of employment –

But, as we have pointed out in our reply, the submission at common law is not necessarily the same as the Court pointed out in Alcan Gove v Zabic [2015] HCA 33; 257 CLR 1. The position at common law is different. The injury there is the mesothelial cellular change that leads to the development of the disease. So, there is another question perhaps lying in the background which is whether there is a uniformity of injury.

GAGELER J: That is a difficulty with dealing with this matter coming up, as it does, on a strike‑out application.

MR HOOKE: We submit not for the very reason that it – because the matter comes up on the pleadings it falls to be determined on the facts as they appear in the pleadings and the difficulty, of course, is that we stand in the position of having had a central plank of our defence struck out. So, if we go to trial and then make our way back up, as it were, to deal with the question at that point there has been an awful waste of resources on the way through. The question of construction is, in our submission, thrown into clear relief by the very fact that it does arise on a strike‑out and whether ultimately facts fall in a particular way would be a matter for the trial on the pleadings as they then ‑ ‑ ‑

GAGELER J: My difficulty with that is that you might be right that there is just one set of circumstances, but “circumstances” is a fairly elastic term and it could vary with the injury. There has been no real exploration of the injury here, beyond the.....characterisation which, as you say, becomes more complex as you drill into it. So, you might be right but that does not necessarily mean that you would win.

MR HOOKE: Your Honour, that may be so but at the moment we are deprived of the right to even argue the point.

GAGELER J: Perhaps because of the course you have chosen to take procedurally to this point.

MR HOOKE: Your Honour, we, with respect, did not take the course. That was the respondent’s course.

GAGELER J: Yes, fair enough.

MR HOOKE: So, to the extent that there is any consequence to be visited consequent upon choosing the target course it should be visited on the respondent, not on the applicants. But at the moment we are shut out from advancing what we say is a perfectly legitimate defence. It is, as the respondent pointed out to the Court of Appeal in seeking leave to appeal from her Honour Judge Richards, it is an important question of construction and it has effect – has consequences for a number of other matters that are sitting waiting in the wings. It is not an isolated question and it was for that reason that the Court of Appeal permitted the respondent to take the matter up on the strike‑out. In our submission it is in the interests of justice that we be permitted to correct that error.

GAGELER J: Thank you, Mr Hooke. Was there something you wished to add?

MR HOOKE: No, unless there is anything further, your Honours, those are our submissions.
GAGELER J: Thank you. Ms Treston, we do not need to call upon you.

Having regard to the procedural history of the matter and to the nature of the worker’s injury we are not persuaded that the present is a suitable vehicle for the Court to consider the proper construction of the provision in question. Nor are we persuaded that the interests of justice demand a grant of special leave in this matter. Special leave will be refused with costs.

AT 11.42 AM THE MATTER WAS CONCLUDED