ACT v Garvan

[2004] HCATrans 59

[2004] HCATrans 059

IN THE HIGH COURT OF AUSTRALIA

Registry  No C4 of 2003

B e t w e e n -

AUSTRALIAN CAPITAL TERRITORY

Applicant

and

EILEEN JOAN GARVAN

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 12 MARCH 2004, AT 12.47 PM

Copyright in the High Court of Australia

MR D.J. HIGGS, SC:   If it please the Court, I appear with MS S.H. PILKINTON for the applicant.  (instructed by ACT Government Solicitor)

MR G.J. LUNNEY:   May it please your Honours, I appear for the respondent.  (instructed by Higgins Solicitors)

KIRBY J:   Yes, Mr Higgs.

MR HIGGS:   Your Honours, there were two findings of fact that were overturned by the Court of Appeal in this matter.  The first was in relation to the hazard over which the respondent tripped whilst traversing Garema Place in Canberra City and, second, was the foreseeability of that hazard by the authority.

HAYNE J:   And they are both findings of fact.

MR HIGGS:   They are both findings of fact.

KIRBY J:   Not very promising matters to start with an application for special leave in this Court.

MR HIGGS:   Thank you, your Honour.

HAYNE J:   We just thought we would engage you a little, Mr Higgs.

MR HIGGS:   The facts in relation to the hazard are summarised in our summary of argument at pages 45 and 46 of the application book and they are not contested.  It was a 2 centimetre irregularity.  It was in a public footway.  The uncontested evidence of the plaintiff was, in the vicinity “It was pretty rough” and that she must not have been watching her feet, and she also later summarised, at the foot of the page, that:

she supposed she was partially glancing as she walked but for a split second before the fall she felt and saw her foot hit the edge of the concrete slab (T34/10-15).  There were no visibility problems, it being a fine sunny day.  It had not been raining and wasn’t overcast. 

It was “a flat, open pedestrian mall”, a public thoroughfare, and that is made out in the photographs that are to be found on pages 1 and 2 of the application book.

In our submission, the Court of the Appeal, in overturning the finding of the Master, either did not apply Ghantous and Brodie and, moreover, seems to have adopted an approach inconsistent to the approach adopted by the New South Wales Court of Appeal in the interpretation and application of that case in these ways.  First, at page 27 of the application book, paragraph 23 of the Court of Appeal judgment, the irregularity was described as being one that was “in the paved area that might [not] be expected”.  I am reading from the first two lines of paragraph 23:

However, this is not a case where there was an irregularity in the paved area that might be expected.  Rather, it was by all accounts an evenly paved area which had the remains of a cement structure upon it.

HAYNE J:   Assume the Court of Appeal, as you would have it, errs in the treatment of these two findings.  They have sent it back to the Master for further findings and for further consideration, is that right?

MR HIGGS:   Yes.

HAYNE J:   Assume that step is then taken.  Assume still further that you lose on that reconsideration.  Is it not at that point, after it has gone up again, that any question of this Court intervening becomes live?  Why should we pick it up partway through when it is heading back to the primary judge for further consideration?

MR HIGGS:   For this reason, your Honour, that it is being sent back for reconsideration in circumstances where, contrary to the approach of the New South Wales Court of Appeal and on a proper interpretation of Ghantous, that, first, it says the irregularity, because it was not expected, that is relevantly a hazard, it overlooks the qualification by at least your Honour, Justice Callinan and the majority judgment ‑ ‑ ‑

HAYNE J:   I dissented in Ghantous, did I not?

MR HIGGS:   But your Honour accepted, as I understood it, the observations of Justice Callinan in relation to public footways not being a level playing field and that type of matter and that the duty was to be defined fairly and squarely, not by reference to a public authority having to keep a footway safe but, rather, with the qualification, reasonably safe for users exercising reasonable care. 

When your Honours come to this judgment and, in particular, at the foot of page 34 of the application book, where, after dealing with the observations of the New South Wales Court of Appeal in Byrnes’ Case, it is made plain by Justice Handley in paragraph 57, that being an extract from his Honour’s judgment in Byrnes’ Case, about the qualification about the plaintiff “keeping a proper lookout” being one that “is not relevant only to contributory negligence” but to the definition of a duty – sorry, I have misled your Honours, that is to be found over the following page, at page 35, lines 10 to 15 in the final sentence.

Their Honours, in this particular case, in paragraph 58, see difficulty in posing the formulation and, in particular, in this case, because it would seem, relying on the observations of Justice Heydon in Standing’s Case, that I will come to in a moment, that as set out in paragraph 61 of the judgment on page 35, that this public thoroughfare has to be contrasted with other thoroughfares because it was “an otherwise even and extensive pedestrian walkway” being something that we would submit is more apt, as observed by Justice Heydon in Standing’s Case, as set out at the top of page 36, in circumstances where there is a shopping mall or someone is invited into a private building and the whole get-up is to encourage pedestrians to shop and in circumstances where the concourse, as described in the second line at the top of page 36, is one that is “extremely smooth” and where, picking up the midpoint of that quote:

The effect of the entire arrangement is to permit and encourage pedestrians, subject to not running into other pedestrians, or persons handing out leaflets or free papers, or persons soliciting charitable donations, or prams, or wheelchairs, or the occasional delivery vehicle, and subject to avoiding any slippery patches ahead, to look at the shop windows and the advertising signs to be seen on walls and stair risers.

Here, that situation did not prevail at all and it was so found.  It was also found that there were no visibility problems.  It was also found that it was not an extremely smooth environment of the type described by Justice Heydon, rather, it was near a building site that the plaintiff, herself, in the uncontested evidence that determined the matter, was extremely rough, or it was a rough area, to pick up the words that she used in her evidence.  Over the page, your Honours, when following the reasoning of the Court of Appeal at the foot of page 37, their Honours go on to say, in paragraph 70:

It will be noted that the obstacle in question here might well not be a hazard in broad daylight in a deserted or semi-deserted walk way.  It might well, subject to shadowing or other factors not be the effective cause of the plaintiff’s fall.  It may have been her own failure to keep a proper look-out.

In other words, contrary to the approach taken by Justice Handley, it would appear that, in substance, what they are doing is, rather than factoring in the qualification that users of a footway need to keep a proper look-out and that that is the standard by which the duty that is imposed on a public authority is to be adjudged, they have duck‑shovelled this particular qualification into the category and to the category alone of contributory negligence in circumstances where beforehand, in paragraph 58, they exposed confusion as to where precisely that particular aspect of the definition of the duty – or how it should be treated.  Then they go on, contrary to any authority, certainly any interpretation or application by any appellate court in this country and certainly contrary to anything that is mentioned in Ghantous or Brodie, towards the foot of paragraph 71 of the judgment towards the bottom of page 37 of the application book, to say that:

In this case, it was at a busy time that the plaintiff fell.  She was chatting to a friend.  It was open to the Master to have found not only that the defendant was responsible for the presence of the obstacle in City Walk (Garema Place) but also that the plaintiff was one of the specific group for whom it represented an unacceptable hazard. 

Now, it is in those four ways putting up a definition of the duty so as to make it an actionable hazard simply because it is not expected, without the rider that it is to be qualified by reference to users exercising reasonable care; second, by, as it were, sidelining that qualification under the rubric of contributory negligence; third, by elevating inappropriately the comments of Justice Heydon in Standing’s Case to equate the exceptional circumstance that did not apply here on the facts, on any view, to the facts of this case, namely, a shopping mall designed to promote window shopping to a public thoroughfare; and, fourth and last, to also further qualify the consideration as to how the duty is to be adjudged and how the judge is to review this matter by introducing a notion that considerations are to be taken into account as to whether this pedestrian fell within a special category.

It, in those circumstances, is certainly, in our respectful submission, contrary to all of the authorities that are referred to from the New South Wales Court of Appeal as to how they approach these matters and, second, in relation to the special category in Standing’s Case, Justice Heydon – and it is in the bundle of authorities that we have handed up.  It is behind tab 3.  I am referring, in particular, to page 69,359 in the second column ‑ ‑ ‑

KIRBY J:   I have an impression that a special leave application was brought to us on a point like this.  Was it brought in Standing, do you know?

MR HIGGS:   Not that we understand, your Honour.

KIRBY J:   We have certainly had a special leave application – Justice McHugh and I, I think, sat together in it in Sydney in such a matter.  We refused special leave in the case, but I do not know whether it was this case, but it is just in the back of my mind.

MR HIGGS:   I am sorry, I am unaware of that.

KIRBY J:   No, do not worry about it.  You have lurking in the woods here a point and I can understand, speaking respectfully of the Court of Appeal, why you have come, but is it not in the nature of an interlocutory appeal?  You might go back to the Master with the directions of fact finding and yet succeed in the Supreme Court of the ACT, in which event we are not troubled.  If you do not succeed, then there is a final judgment and all these points that you are raising now are reserved to you, as I understand the law, for you to press in resistance to the final judgment of the Court of Appeal.

MR HIGGS:   Your Honour, there are broadly two bases upon which we come in relation to the finding in relation to the hazard.  First, either there is an inconsistency in approaches between the Court of Appeal in the ACT and the Court of Appeal in New South Wales.  It may be that your Honours come to the view that that is better described along the lines that the Court of Appeal in the ACT got it wrong and that the Court of Appeal in New South Wales, when they firmly set their face against any suggestion that there are special categories or that when they interpret and apply Ghantous and Brodie upon the basis that something unexpected alone is not going to constitute a hazard ‑ ‑ ‑

HAYNE J:   That is perhaps illustrating the deeper point, which may represent a real difficulty for your application for special leave, which is that you seem to assume, sub silentio, that this approach to fact finding bespeaks principle and that the decision of the Court of Appeal in this case will somehow affect the interests of road authorities in the position of the Territory, whereas, if it seen as – at least on one view, it is properly seen as but a bare decision of particular questions of fact as they were debated establishing no principle whatever, why do we take it on?

MR HIGGS:   Your Honour, because it is a question of degree and it may be that we overreact, but from our side of the Bar table we submit that they got it so wrong that these directions, when it goes back to Justice Connolly, I assume, as he now is – it might bring about a different result, sure, one that would still leave available to us the right to spend another pleasant morning in Canberra and make a similar application, but it seems to us, with respect, to invite a different outcome and one that is simply wrong.

The second point in relation to the finding with respect to the hazard and also the one of foreseeability that we attempt to take up in the written submissions is this.  It seems to us, with respect, that it completely misconceives the role of the appellate court.  It has misquoted the evidence in relation to whether or not the obstacle was visible or not and proceeds upon the basis that this walkway is to be treated like an “extremely smooth” shopping mall of the type referred to by Justice Heydon and does not then go, using the facts that are plainly before the Court of Appeal and then, if they would wish, proceed further and draw inferences on those facts, which they are allowed to do and which they are quite capable of doing.  Even they do not suggest that the inferences are so strong as to bring about that result; rather, they sent it back. 

It seems to us, with respect, that both in relation to this point and, because of the time, if I can wrap it up in this way, in relation to the issue of foreseeability, it was a complete, with respect, misunderstanding of their role, because of the authorities of Abalos and Fox v  Percy that we have in our reply, that there was nothing before the court, particularly in relation to the issue of foreseeability, where a finding that was made by the learned Master upon the basis that the authority, even if this was a hazard, would never be reasonably foreseeable, it was still open to the Master to find, because of the presumption of regularity, that a building approval would have been sought for the removal of this bollard and that, therefore, the authority would have been aware of it and that, hence, they had the requisite responsibility to have it removed. 

Now, if you apply the presumption of regularity logically, the uncontested evidence that the court refers to is, and the uncontested evidence was, that if it was to be carried out regularly, the work would have been carried out in a completely different way.  To assume that the learned Master did not take that into account, by reference to the way in which the trial was run, where officers were called to give evidence about searching departmental files and where there had been no record and that that evidence was accepted and that there was no good reason to reject that evidence or to reject that finding, that that seems to us, with respect, to demonstrate a significant departure from the way in which an appellate court should review a ‑ ‑ ‑

KIRBY J:   As always, Mr Higgs, you put your arguments very persuasively, but you still have not answered the matter that is concerning me and that is that this is really an interlocutory application, is it not?  There is no final judgment here.  You are coming up in the middle of proceedings in the Supreme Court of the Australian Capital Territory and, as it were, trying to jump the gun.  Now, given what we have to deal with, why would we not wait and see whether the rehearing before the Master, now Justice Connolly, would not resolve the matter in your favour?  That may be resolved and then we are not troubled.

MR HIGGS:   Your Honour, it depends upon ‑ ‑ ‑

KIRBY J:   You say you should take it on to teach a lesson in the proper conduct of appeals by intermediate courts, but that point is reserved to you

in the event that ultimately the matter is determined in a way that you are, at the end of the process, disaffected.

MR HIGGS:   Well, that point is not reserved to us because, if we win before Justice Connolly, as he now is, then the matter goes away, which is something that your Honours, because of the burden of work that you have, would want.  It certainly is a matter that your Honours can grant special leave in in that it is not a true interlocutory application.

KIRBY J:   We can grant special leave in an interlocutory matter as well, but it is a question of the timeliness of this application.

MR HIGGS:   The only other point, your Honour, is there are four sitting justices of the court.  Three of those justices, we say, have a profoundly mistaken belief or understanding of what your Honours meant in relation to Ghantous or Brodie or, alternatively, if we be wrong in that regard, their approach is so different to the New South Wales Court of Appeal, and we have just found another authority in the Court of Appeal in Western Australia, that your Honours might feel that it was sufficiently important to grant special leave in order to resolve those differences.

KIRBY J:   Thank you very much, Mr Higgs.  The Court does not need your assistance, Mr Lunney.

This application raises complaints concerning a decision of the Court of Appeal of the Australian Capital Territory in overturning the findings of fact of a Master of the Supreme Court of the Australian Capital Territory in a personal damages action. 

So far as the case is said to raise questions of legal principle, it is premature.  The case has been sent back for redetermination of facts.  Upon that redetermination, the primary judge may still conclude the case in favour of the applicant.  The time of this Court would then be saved.

So far as the case is said to raise questions of injustice, these too would probably arise for consideration by this Court, if at all, upon a conclusion of the rehearing and the judgment that follows it.  Special leave is refused.  It must be refused with costs.

AT 1.11 PM THE MATTER WAS CONCLUDED