Hare v Mount Isa Mines Ltd[2008] QCA 328

SUPREME COURT OF QUEENSLAND

HOLMES JA:  The applicants seek a stay, expressed to be pursuant to rule 761(2) of the Uniform Civil Procedure Rules, of a District Court judge's decision declaring that a notice of claim served by the respondent on the applicants pursuant to section 9 of the Personal Injuries Proceedings Act was a complying notice of claim under that Act.

The regulations under that Act require particulars of the incident alleged to have caused the personal injury to which the claim relates as well as the reasons for attributing responsibility for it to the persons served.  The respondent's notice of claim asserted that she had been exposed to and absorbed dangerous levels of lead, arsenic, cadmium and other toxic elements at her home, her school and a park in Mt Isa with deleterious effects on her health and that the applicants had caused contamination of unspecified parts of that city with those toxins by industrial practices which included movement of material off the applicants' lease in various identified ways and particulate fall out from its smelters.

Also in the claim form, the respondent answered in the negative a question about whether she had suffered any personal injuries, illnesses or disabilities before or after the incident for which she claimed. 

The applicants asserted that the notice was non-compliant because it did not properly explain what the relevant incident was or why the applicants were said to have caused it, did not identify the other toxic elements and as to previous medical history did not disclose the respondent's premature birth which, according to medical evidence, might have contributed to her current disabilities.

The learned judge at first instance found that the notice was compliant because it gave sufficient information to meet the fundamental purpose of enabling the respondent to identify the nature of the incident giving rise to the claim, when it happened, where it happened, why the applicants were alleged to be responsible and the nature of the alleged injury caused.  If there were a deficiency, it had been remedied by subsequent correspondence; and other matters raised by the respondent were not to do with compliance, but with questions which would be the subject of comprehensive disclosure in the course of pre-court procedures. 

The applicants have filed a notice of appeal, the grounds of which in essence assert various errors in the learned judge's findings, complain that no finding was made about the respondent's answer as to whether she had any pre-existing health problems, and assert that the learned judge failed to provide sufficient reasons, decided the application against the evidence and failed to deal adequately with their arguments. 

For the purposes of this application, the applicants say that they have an arguable case:  that it is obvious that the details of the incident given and the reasons for attributing responsibility for it to the applicants do not comply with the requirements of the Act because there is no identification of how the respondent ingested the toxins or any connection between that ingestion and the identified industrial practices of the respondent, and that the learned judge failed to deal with the untrue answer to the question about other injuries. 

If the applicants are obliged to make disclosure to the respondent under section 27 of the Personal Injuries Proceedings Act which requires, inter alia, the provision of reports and other documentary material about the incident, they will be faced with a highly expensive and onerous task and their right of appeal will be rendered nugatory.  On the other hand, they say, there would be no prejudice to the respondent in the relatively short delay involved in the appeal. 

There is, however, a preliminary issue:  whether the decision below was an interlocutory one.  If so, the applicants require leave to appeal it under section 118(3) of the District Courts Act.  Rule 761(2) of the Uniform Civil Procedure Rules, pursuant to which the applicants apply, enables a stay of the enforcement of all or part of a decision subject to an appeal.  In two cases, McPherson JA concluded that where leave has not been obtained, a decision is not subject to an appeal (see Stone v Copperform Proprietary Limited [2002] 1 Qd R 106; Perovich v Australian Securities and Investments Commission (2005) 56 ACSR 303).  His Honour's reasoning was approved by the Court of Appeal in Bell v Bay-Jespersen [2004] 2 Qd R 235. 

Mr Kelly SC for the applicants argued that the decision was a final decision giving rise to a res judicata estoppel.  He pointed that there was no such thing as an interlocutory declaration known to the law.  For that proposition he pointed to statements in Graham Barclay Oysters Proprietary Limited v Ryan (2002) 211 CLR 540 at 590 and Ho v Grigor (2006) 231 ALR 639 at 651 and to the other authorities cited in those cases.  However, those cases, as it seems to me, were more concerned with the question of whether an order in declaratory form expressed to be made on a contingent or interim basis can in truth be a declaration, rather than classification for the purpose of determining whether an appeal lies of right. 

As I discussed in Castillon v P & O Ports Ltd [2007] QCA 364 at paragraph 58, it seems to me that the exercise of classification may vary in different contexts.  I appreciate that this is not a universal approach, nor an entirely satisfactory one.  In Warramunda Village Inc v Pryde [2002] FCA 250, Finklestein J discussed the issue at length, reaching the view that the characterisation of an order as final or interlocutory ought to stand for all purposes, so that if a declaration were correctly regarded as necessarily a final order, it could not in any circumstances be treated as interlocutory.  However, as he recognised, that view ran counter to a number of decisions of the Full Federal Court. 

More significant to my considerations is a decision of this Court in Barnes v Australian Telecommunications Corporation (1996) 125 FLR at 335.  In that case, the District Court judge had made a declaration that a letter written by the plaintiff constituted a valid notice of election for the purposes of the Commonwealth Safety Rehabilitation and Compensation Act.  That was a prerequisite for bringing an action for damages against the Commonwealth.  The question was whether the declaration was a final judgment so as to enable the defendant to the action to appeal against it as of right.  The court, while accepting that the declaration was final in the sense of producing an issue estoppel, concluded that it did not finally dispose of the action, as opposed to resolving a question raised in the pleading before trial, and was not therefore a final judgment. 

But unlike the situation in Barnes, and as Mr Kelly pointed out, there were no proceedings on foot here.  Instead, he argued, the question whether the notice was compliant was decided as a discrete issue, resolving the rights of the parties in relation to it, and it was thus a final decision.

But I think that may be too narrow a view.  The fact that the application is made in isolation rather than in the context of proceedings does not determine its nature as final.  In Hall v The Nominal Defendant (1966) 117 CLR 423, as here, the prospective plaintiff had made, not an application in proceedings, but an application for an order necessary to the commencement of proceedings.  There the order at issue was one refusing an application for an extension of time within which to issue proceedings against The Nominal Defendant.  There was, as Justice Windeyer observed (at 844), no existing dispute and no existing action.  The case was to be distinguished from others in which the determining factor was the effect of the order in putting an end to an existing dispute.  It was necessary instead, he said, to consider the character of the proceedings in which the order was made rather than the result for the applicants.  If an extension of time were granted the order would not be a final order.  That position ought similarly to prevail in the circumstance where the extension of time was refused.

Justice Taylor, with whom Justice Owen concurred, observed that the applicant could have made a further application to extend time, although practically speaking it would have to be supported by additional relevant facts.  The point was that the order did not of its own force conclude the applicant's right to bring an action and it was not therefore final. 

Similarly, in the present case, had the respondent been refused a declaration she would not have been precluded from a further application based on an amended notice of claim.  Failure would not have prevented her from proceeding. 

In Ex parte Brit [1987] 1 Qd R 221, Justice McPherson considered the interlocutory/final classification question from the point of view of deciding whether hearsay evidence was admissible on an application for an order extending time to claim against the Nominal Defendant.  He made it clear that he saw the test broadly: 

‘whether the decision of the application will finally dispose of the rights of the parties not merely as to the subject matter of the particular application in question but also as to the ultimate dispute between the parties, irrespective of whether it already is the subject of litigation, and independently of whether the outcome of the application may in a practical sense spell an end to all prospect of initiating such litigation’ (at page 226). 

The question of how the declaration in this case ought to be characterised has, as in many other cases been productive of great difficulty, a situation not improved by the need, in the context of a stay application, to decide the matter in haste.  But I take the view that a broader approach than that suggested by the applicants ought to be adopted here.  The application for a declaration was not brought in isolation.  Although not made under the Personal Injuries Proceedings Act, it was brought so as to enable the respondent on a declaration that her notice of claim was compliant, to proceed with her claim, the parties' rights in respect of which remain to be determined.

Although the making of the declaration in a narrow sense decides the rights of the parties in relation to the notice of claim, it does not, in the wider sense, finally determine their rights in the subject matter of the dispute between them, that is, whether the applicants are liable to the respondent in negligence.  It is, in my view, interlocutory and the applicants require leave in order to appeal it.  Consequently, the application for a stay under rule 761 is premature. 

Mr Kelly did not attempt to support the application on any other basis than under rule 761.  He did however submit that were I to reach this view I should, rather than dismissing the stay application, adjourn it pending the hearing of an application for leave to appeal.  Mr Mullins for the respondent did not, as I understood it, take any objection to that suggestion and there are practical reasons for not requiring the parties to incur the further expense of a fresh application. 

Accordingly, I would propose to adjourn the stay application sine die.  I should say, however, that having read the transcripts I reject the submission that the respondent acquiesced at first instance in the view that the application was one for final relief.  Subject to submissions, I would consider that the respondent should have her costs of the application to date. 

Now, gentlemen, does either of you have anything to say about that result? 

MR CHARRINGTON:  One small matter.

HOLMES JA: Yes.

MR CHARRINGTON:  If your Honour was referring to the passages of the transcript identified in Mr Kelly's submissions of 17 October‑‑‑‑‑

HOLMES JA:  Yes.

MR CHARRINGTON:  ‑‑‑‑‑which refer to the issue of the objection to hearsay evidence, there is an additional matter in the transcript relating to the cross-examination of Mr Scattini where there's a passage, and I can take your Honour to it, it's at page - of our appeal book A624.  Page 17 of the transcript where there is a contention from my learned friend, Mr Mullins, that the cross-examination should be kept tight because it was a chamber application.  The response from my learned leader that that's not the case, it's an application for final relief‑‑‑‑‑

HOLMES JA:  Right. 

MR CHARRINGTON:  ‑‑‑‑‑and therefore cross-examination at large - acceptance of that proposition by the learned trial judge and then no contention or disagreement with that proposition whatsoever from Mr Mullins.

HOLMES JA:  I think not arguing it is not quite the same as acquiescence and preferring a quiet life may not indicate endorsement of the view.  I don't think that there was in that some basis for your side of the argument then to assume that for all purposes forever that was a final application and that there was no need to consider the question when it came to a stay, frankly. 

MR CHARRINGTON:  That was the only matter that I could raise on the point, your Honour.

HOLMES JA:  Yes, thanks for that.

MR CHARRINGTON:  Thank you. 

HOLMES JA:  Mr Mullins?

MR MULLINS:  Nothing further, thank you, your Honour.

HOLMES JA:  All right, then.  Well, the order then will be that the application for a stay is adjourned sine die.  The applicants are to pay the respondents' costs of the application thus far.