Barnes v Australian Telecommunications Corporation [1996] QCA 1

Would you please advise whether our client will continue to receive and be entitled to receive payments under Section 19 of the Act, even when any action instituted as a result of such an election is finally determined.

We understand our client has not received any payments under Section 24, 25 and 27 of the Act. Accordingly, we would ask that you make no payments under these sections.

We look forward to your urgent advices in this regard."

The learned primary judge held that the letter did involve an election in terms of s.45(1) of the Act, and he made a declaration accordingly.

The defendant now appeals, or alternatively seeks leave to appeal, against that decision. Having read what Pincus J.A. has written on this subject, I am in agreement with his view that the appeal is not one which may be brought to this Court as of right. There is now a substantial body of authority in Australia to the effect that the determination of a particular issue, forming only a particular element in a cause of action or being part of a wider question in a proceeding, does not ordinarily amount to a "final judgment" within the meaning of an appeal provision like s.92(1) of the District Courts Act 1967. Such a decision is not a final determination of the parties' rights in the action. See the authorities cited by Pincus J.A., to which may be added a reference to the decision of the Full Court of Western Australia in Metcalf v. Permanent Building Society (1992) 10 W.A.R. 145.

Although the decision in this case is not a final judgment in terms of s.92(1), it is open to this Court acting under s.92(2) to grant leave to appeal. The power to grant leave is subject to s.92(2A), which precludes its being given "unless some important question of law or justice is involved". I am in no doubt that the interpretation of the letter or its effect in the context of s.45(1) of the Act involves a question at least partly of law. Some authority for that view may perhaps be found in Symonds v. Ivanhoe Gold Corporation Ltd. [1904] WALawRp 55; (1904) 7 W.A.L.R. 69 (for subsequent proceedings see Ivanhoe Gold Corporation Ltd. v. Symonds [1906] HCA 71; (1906) 4 C.L.R. 642). But in any event the meaning of the expression "elect" in s.45(1) is not necessarily a simple question. Under earlier legislation the critical question was whether the worker had exercised his "option" to accept compensation or to take proceedings at law. In distinguishing this "option" from an election, Viscount Simon in Young v. Bristol Aeroplane Ltd. [1946] A.C. 163, 172, said that, if "election" in the full sense was meant, "it would be necessary for the workman to know all that was material to determine his choice". See also Dey v. Victorian Ry.Commrs. (1949) 78 C.L.R. 62, where the decision in Young's case is considered.

Whether the word "elect" in s.45(1) bears some such meaning is a matter that was not considered in the present case. The question was seen to depend simply on the interpretation of the letter or its contents. If the word has the wider connotation suggested by Viscount Simon, or if at least it requires something more than a consideration of whether an "option" has been exercised, it may be necessary to undertake some investigation of facts antecedent to the letter of 2 March 1993 or the matter it communicated. On the material before us now, it would not be possible adequately or satisfactorily to resolve that question.

One may have some sympathy with the wish of the parties, and particularly the plaintiff, to have this point determined in advance of and without incurring the expense of a full trial. As matters stand, however, it does not seem possible to achieve that outcome, either satisfactorily or at all, by granting leave to appeal at this stage. Despite first impressions, the question is not one that lends itself to determination by a means that, whatever its form, resembles in effect the procedure by demurrer. On the other hand, if leave is refused, the consequence may be to bind the parties to a decision on a point which may, on one view, possibly end up proving to be decisive of the whole action. It is a vice of the distinction between "final" and "interlocutory" judgments that a determination may be interlocutory only for one purpose such as appeal, but final for another, such as the determination of a particular point in an action.

Whether that is so of the declaration made in the present case is something on which it would be unwise to venture an opinion. The question was not argued before us in those terms. That being so, I see no alternative to the course proposed by Pincus J.A. as the means of preserving the rights and interests of both parties. The notice of appeal should be struck out; but the application for leave to appeal should be adjourned to a date to be fixed, with leave to the applicant defendant to renew the application if and when the action is disposed of in the District Court. The costs of the proceedings in this Court should be reserved.

The appellant, the defendant in the proceedings below, applies to this Court for a declaration that its appeal has been properly instituted and alternatively leave to appeal.

The proceedings were begun by plaint issued in the District Court on 6 August 1994 claiming damages for negligence for injuries incurred by the respondent on 8 August 1990 while carrying out instructions in the course of his employment by the appellant as a linesman.

The issues in the appeal concern the operation of the Safety Rehabilitation and Compensation Act 1988 (Cth) ("the Act"). Comcare, a body corporate, is established under the Act to deal with (among other matters) claims by employees of the Commonwealth in respect of injuries arising out of or in the course of employment. Section 24 makes Comcare liable to pay compensation to an employee whose injury results in a permanent impairment; however, Comcare is not liable to pay compensation where it determines the degree of impairment of the employee to be less than 10%. Section 27 provides for the payment of additional compensation by Comcare for non-economic loss.

Section 44 provides that no action for damages lies against the Commonwealth in respect of such injuries, but this provision is subject to s.45, which provides, in part:

(a) compensation is payable under section 24, 25 or 27 in respect of an injury to an employee; and

(b) the Commonwealth...would, but for subsection 44(1), be liable for damages for any non-economic loss suffered by the employee as a result of the injury;

the employee may, at any time before an amount of compensation is paid to the employee under section 24, 25 or 27...elect in writing to institute an action or proceeding against the Commonwealth...or other employee for damages for that non-economic loss."

The Act does not prescribe any particular form of election, other than that it be in writing.

Prior to the action for damages being heard, a declaration was made in the District Court that a letter dated 2 March 1993 constituted a valid notice of election under s.45 of the Act . On the same day, an application by the appellant to strike out the action was refused. The appellant filed a Notice of Appeal against both orders in this Court on 19 May 1995, without having sought leave to appeal.

The question arises whether the declaration made by the learned District Court judge was a final judgment within the meaning of s. 92(1) of the District Courts Act 1967; the appellant contends that it was such a judgment and the respondent says it was merely interlocutory, so that leave to appeal is necessary under s. 92(2). It seems clear enough that the declaration which is in issue is a "judgment" within the meaning of the definition in s. 4 of the District Courts Act, but is the judgment a final one?

It is plainly not final in the sense that it finally disposes of the parties' rights in the whole proceeding, nor in the sense that it finally disposes of the parties' rights in the whole dispute. Despite the respondent's success in obtaining the declaration, he may yet fail to obtain damages if he is unable to satisfy the Court that there has been any act or omission on the part of the appellant making it liable for the respondent's injury. But the declaration made in the present case is final in the sense that it appears to produce an issue estoppel. The point decided by the primary judge cannot be re-litigated between the same parties; that contrasts the matter with a decision not to set aside a default judgment: Hall v. Nominal Defendant [1966] HCA 36; (1966) 117 C.L.R. 423 at 440, Carr v. Finance Corp. of Australia Ltd (No. 1) [1981] HCA 20; (1981) 147 C.L.R. 246 at 248. The argument that the declaration is not a final judgment depends entirely on the proposition that, for a judgment to be final, it must finally dispose of the whole action rather than merely deciding a point of law or fact involved in it. Here, although not so expressed, the summons on which the judgment was based asked in effect for determination before trial of one of the questions raised in the pleadings.

There is certainly an authority which favours the appellant: in Tag Pacific Limited v. McSweeney [1992] FCA 191; (1992) 34 F.C.R. 438 a similar question arose in the Federal Court and it was decided that the judgment in question was final, not interlocutory. What occurred there, in an action for damages, was that the judge determined the question of liability first, giving judgment for damages to be assessed. The defendant applied for leave to appeal, which was necessary if the judgment was interlocutory, but it was determined that leave to appeal was unnecessary. But in Landsal Pty Ltd v. R.E.I. Building Society [1993] FCA 121; (1993) 113 A.L.R. 643 at 653 the Full Court of the Federal Court criticised the decision in the Tag case as being inconsistent with previous decisions.

The Full Court's view appears, with respect, to be correct. In John Grant & Sons Ltd v. The Trocadero Building Investment Company Limited [1938] HCA 20; (1938) 60 C.L.R. 1, a builder sued on a progress certificate. There was a cross-action and each party demurred to some of the other party's pleadings; the points so raised were decided by the Supreme Court of New South Wales and judgment entered on the demurrers, with leave to amend: (1937) 37 (N.S.W.) 535. The plaintiff appealed as of right and no point was taken about the right to do so, but Dixon J. (p. 35) with whom Rich J. (p. 19) agreed, held that the judgment was interlocutory because it did not determine the action.

Then in Apple Computer Inc. v. Computer Edge Pty Ltd (1984) 1 F.C.R. 549 the Federal Court had to consider a number of claims under the Trade Practices Act 1974 and the Copyright Act 1968. Permanent injunctions were granted, but the whole case was not disposed of because claims for damages were left unresolved; it was ordered that if they were to be pursued certain procedural steps should be taken. An appeal was filed in the High Court as of right, but was held to be incompetent: [1984] HCA 47; (1984) 54 A.L.R. 767. Gibbs C.J. remarked:

" What is plain is that the judgment of [the Federal Court] comprised two orders which, viewed by themselves and apart from the rest of the judgment, were final orders, and one order which was plainly interlocutory. The result of the judgment as a whole was that some of the questions in issue in the case were determined and others were not. "

After reference to the judgment in John Grant & Sons just referred to, Gibbs C.J. held that the judgment of the Federal Court was not final.

It therefore appears to be established that if a judgment, although finally determining some of the issues in an action, leaves another or others undetermined, it is not a final judgment for the purposes of appeal provisions such as those being considered here; the High Court's decision in the Computer Edge case thus vindicates the decision of the Full Court of the Supreme Court of Victoria in Dunstan v. Simmie & Co. Pty Ltd [1978] VicRp 62; [1978] V.R. 669 at 670.

Apart from expressing some mild disappointment that none of the three counsel who appeared in the case seems to have found the directly relevant authorities to which reference is made above, it is unnecessary to say anything more on this point.

As has been mentioned, in addition to the declaration that the letter dated 2 March 1993 constituted a valid notice of election, the District Court ordered that an application by the appellant to strike out the action be refused, and that refusal, it is clear, was an interlocutory order. If leave to appeal against the declaration granted is to be given then it would be convenient, as it seems to me, also to give leave to appeal against the refusal to strike out. The question is whether leave should be given on the ground that, as is argued, the case involves an important question of law.

Attention was drawn by both parties to a question of law which is potentially involved, namely, whether the suit brought is subject to the three year time limitation imposed by s. 11 of the Limitation of Actions Act 1974. That was a matter raised by the application the plaintiff made to the primary judge, but not determined by his Honour; it was unnecessary to deal with it because the plaintiff desired a decision on the point only if it were concluded that the letter dated 2 March 1993 mentioned above did not constitute a valid notice of election under s. 45 of the Act. In that event, the plaintiff proposed to give a proper notice of election and to reinstitute the action, the three year time limit having expired. Counsel for the plaintiff suggested that we might so arrange matters as to bring about a decision of the limitation point if it became necessary, but this Court does not have before it any order made by the District Court relating to that point; no appeal has been or could be brought with respect to it.

It follows that, although the limitation point is an important one, it cannot be taken into account in determining whether the orders the District Court judge made are such as to warrant leave to appeal. The question whether leave should be given depends upon whether the judge's decision on the efficacy of the alleged election involves an important question of law.

His Honour, in his lucid reasons, reached his conclusion on two grounds. With some hesitation, his Honour concluded that the letter in question, although elliptical, sufficiently conveyed that the plaintiff was electing to proceed to institute an action. His Honour further held that, although the plaint alleged a "permanent partial bodily disability of some 5%", the case was one in which compensation was payable within the meaning of s. 45(a) quoted above.

It appears to me that the proper interpretation of the requirement in s. 45 that there be an election in writing to institute an action is a matter of law, although applying that interpretation to a particular set of facts is not such a matter. What the judge held in the present case was, in effect, that although only by implication, the letter sufficiently indicated an election to sue; there is certainly nothing in the letter which expresses that intention, either in the words of the Act or in any other language. I am not prepared to accept that the conformity of particular language to the requirement of the Act can involve only a factual as opposed to a legal issue. Further, the other point ("the 10% point") dealt with by the primary judge involves a legal question and that is whether s. 24(7), which denies a right of compensation where the Commission determines that the degree of permanent impairment is less than 10%, is relevant when the court determines whether compensation is payable within the meaning of s. 45 of the Act.

These points attain sufficient importance, in my view, not because it is shown that deciding them will necessarily affect any other identified matters, but because of the very large number of persons who are subject to the relevant Commonwealth legislation; that is likely to give importance to legal points which arise under it.

I pass now to consider whether, although there are important questions of law in the case, leave should be given. It will be noted that the existence of an important question of law or justice is a precondition of granting leave only; the Court has, in the end, a discretion whether to grant leave or refuse it.

The case has become quite complex procedurally and there is the possibility that it could produce a number of further hearings - of the appeal (if leave is granted) the trial and perhaps a further appeal. One can understand the anxiety of the applicant for leave, the Australian Telecommunications Corporation, to obtain an authoritative decision on the points which have been discussed. But one or both may turn out to be academic; for example, the action may fail on the merits. Further, the 10% point may conceivably depend on the facts found, as to the extent of the plaintiff's injury. It seems to me desirable, on the whole, if there is to be a trial, that it occur before rather than after the matters raised here are further considered by this Court. The purpose is to ensure that there be no inconvenient fragmentation of the issues.

The question arises as to what should be done with the application for leave; if it is dismissed, then an argument may be raised that the District Court's decision on the points discussed may not be able to be challenged, by way of an appeal against a final judgment in favour of the plaintiff against the applicant corporation. To safeguard the applicant's position, the application for leave to appeal should be adjourned to a date to be fixed, with the intention that it may be renewed if the corporation thinks fit, if and when the action is disposed of by the District Court. I think the notice of appeal should, however, be struck out. The costs of the proceedings in this Court will be reserved.

I have read the reasons for judgment prepared by Pincus J.A. and McPherson J.A.

I agree with the orders proposed and with their reasons.