Agar & Ors v Hyde- Agar & Ors v Worsley

[1999] HCATrans 274

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S169 of 1998

B e t w e e n -

A.E. AGAR (and others named in the schedule)

Applicants

and

LUKE DOUGLAS HYDE

Respondent

Office of the Registry
  Sydney  No S170 of 1998

B e t w e e n -

A.E. AGAR (and others named in the schedule)

Applicants

and

PETER MICHAEL WORSLEY

Respondent

Applications for special leave to appeal

GAUDRON ACJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 SEPTEMBER 1999, AT 12.13 PM

Copyright in the High Court of Australia

_________________

MR P.J. DEAKIN, QC:   If the Court pleases, I appear for the applicants with my learned junior, MR P.R. STOCKLEY.  (instructed by Garrett Walmsley Madgwick)

MR C.T. BARRY, QC:   May it please the Court, I appear for the respondents with my learned friend, MR M.L. BRABAZON.  (instructed by McClellands)

GAUDRON ACJ:   Now, these matters can, of course, be heard together?

MR DEAKIN:   Yes.  Your Honours, they arise out of separate accidents: one occurring in 1986; the other occurring in 1987, but for relevant purposes today, there is no controversy about any of the facts at all, both of them sustaining devastating injuries as a result of scrums collapsing in the course of games of rugby union.  We would seek to address your Honours firstly in the matter of Hyde and put the arguments that we would wish to put to your Honours in that matter, and there will be some additional matters very briefly that we wish to put in Worsley.  

Your Honours, the applicants are residents - - -

GAUDRON ACJ:   We are familiar with the facts.

MR DEAKIN:   Yes, thank you, your Honour – of various countries, all involved in the administration of the game of rugby union.  They attended a single meeting in London which was the annual general meeting of the International Rugby Football Board, being the unincorporated association.

CALLINAN J:   At which a majority of 75 per cent was required to get a change in the Rules, is that right?

MR DEAKIN:   Yes, your Honour.  At first instance, the present respondent sought leave to proceed against foreign defendants and that application was refused by the trial judge, Mr Justice Grove. 

GAUDRON ACJ:   Could I interrupt you there because there is something I fail to understand?  They initially sought leave to amend which leave was granted.

MR DEAKIN:   Yes, your Honour.

GAUDRON ACJ:   And by that leave they joined your clients as defendants.

MR DEAKIN:   Yes, your Honour.

GAUDRON ACJ:   You have put on a notice of contention in the Full Court and you seek to raise it here but I do not understand how it applies.

MR DEAKIN:   It was sought to be raised in the Court of Appeal because the argument that we wish to raise in support of the trial judge was he did not have occasion to deal with it but one of the matters that needs to be considered if his decision is to be reviewed is to whether we were properly joined too the proceedings at all.

GAUDRON ACJ:   I do not understand that.  An order was made giving the plaintiff leave to amend to join you.

CALLINAN J:   Was that made ex parte?

MR DEAKIN:   No, it was not.  It was made as a consequence of our argument before Mr Justice Badgery-Parker being upheld that the proceedings had, at all times, been misconceived because they had been brought against the unincorporated association.  Now, the simple point that we wished to raise in the Court of Appeal, in answer to your Honour Justice Gaudron, was that because at the time that that order was made joining the individual applicants who are now before this Court, the limitation period had expired and because, up to that point in time, we had never been joined to the proceedings.

GAUDRON ACJ:   So, it is tied up with your limitation point?

MR DEAKIN:   Well, it is part of the limitation point, yes, your Honour.

GAUDRON ACJ:   Thank you.  Let me not distract you further.

MR DEAKIN:   And, your Honours, our second point that we will be coming to is that – and it is directly relevant to the fourth jurisdictional head that was found by the Court of Appeal - namely, under subrule (i) dealing with parties properly joined to the proceedings within the jurisdiction but the foreign defendant not being properly joined to the proceedings.

GAUDRON ACJ:   Yes, I understand that.

MR DEAKIN:   That is the second point that we wish to deal with.

GAUDRON ACJ:   But to some extent that is irrelevant if there was a cause of action – if there was damage suffered in the jurisdiction, is it not?

MR DEAKIN:   They can be categorised in two ways.  The first ones, (a), (d) and (e), all require a tort committed somewhere and they can be dealt with principally for the purposes of today’s application as whether there is a good arguable case or not established as to the existence of a tort, the principal issue being duty of care.

GAUDRON ACJ:   Well, I am not too sure that that is – yes.

MR DEAKIN:   And then the second one is (i) point which does not involve any argument about tort.  It simply involves an argument as to whether we were properly joined or not, and it is that that the Court of Appeal failed to deal with at all.

GAUDRON ACJ:   But that is a question that may not arise.

MR DEAKIN:   It may not, as your Honour pleases.  Well then, can we just identify the three points in the order in which we are going to deal with them, your Honours?  I think your Honours are sufficiently au fait with the material.  The first is whether the concept of proximity as applied by the trial judge remains as the general determinant for categories - - -

GAUDRON ACJ:   No, is not the real question whether the Court of Appeal correctly applied its own test, namely whether there was a reasonably arguable case?

MR DEAKIN:   Yes, that is the starting point but the particular point that we do want to raise from consideration of the judgments of the Court of Appeal is they say that the trial judge applied the proximity test and if he is correct in that application, then he was right to refuse leave.  What the Court of Appeal did not go on to do is to say why his Honour was in error in applying proximity.  So, it raises the two points as our first point. 

GAUDRON ACJ:   The notion of proximity – I think you have to put it more widely than that because the notion of proximity - - -

MR DEAKIN:   - - - has been undermined, that is true.

GAUDRON ACJ:   - - - has been considerably undermined.

MR DEAKIN:   Yes, your Honour, so we do put it more widely than that.

GAUDRON ACJ:   I think in Perre v Apand I do not think anyone supported the notion that it was some absolute yardstick.

MR DEAKIN:   No, we understand that but, your Honour, we do put it more widely than that.  We say, firstly, it was not for the Court of Appeal to regard it as having been discarded, absent some authority from this Court, but if they did then, your Honours, it does raise the special leave point in any event because what is the test that is to be applied in determining duty of care in novel cases?

GAUDRON ACJ:   But, no, the question is not that.  The question can only be whether there was an arguable case or “a good arguable case”, as the Court of Appeal said.  You may wish to say there was not because of this but the real question is could it be held that there was a good arguable case.

MR DEAKIN:   Well, we do need to look at what the Court of Appeal did say about it but we submit that they did not apply proximity nor is it clear, other than policy considerations, what test they did deem appropriate to apply.

CALLINAN J:   But you say there are other reasons anyway why there was not a good arguable case?

MR DEAKIN:   Yes, there are.

CALLINAN J:   You do not confine yourself to proximity.

MR DEAKIN:   No, we do not, your Honour.  We concede that, for instance, causation, which is one of the matters we expressly raised, would be difficult for this Court to deal with because that would involve some factual issues, bearing in mind that there has not been any factual determinations giving rise to this Court, but there are a number of other issues that do arise as to why - - -

CALLINAN J:  But you argue, even on the pleadings, do you not, that causation is not capable of being established?

MR DEAKIN:   Yes, your Honour, yes, we do, and that was the trial judge’s finding.  He said that whether one applies neighbourhood or proximity, he was not satisfied there was a sufficient connection between the acts of the members of the International Rugby Football Board in London and the plaintiffs’ injuries later.

The second point that we do wish to raise which we have alluded to already is the notice of contention point.  It does assume particular significance in the (i) point as to whether we were properly joined.

GAUDRON ACJ:   But may not arise.

MR DEAKIN:   May not arise but, your Honours, this was squarely raised.  We have given your Honours - - -

GAUDRON ACJ:   It may have been squarely raised and it may even now be squarely raised but you are seeking special leave to appeal.

MR DEAKIN:   Yes.

GAUDRON ACJ:   And what I am suggesting to you is there are two questions:  one, whether your clients could be served outside of the jurisdiction, and that is where (i) comes in, does it not?  But it is irrelevant if there are other grounds on which you could clearly be served outside the jurisdiction, namely, damage in the jurisdiction.  Then, your other question is not relevant to service but to the exercise of the discretion for leave to proceed.

MR DEAKIN:   Damage within the jurisdiction is one of the matters that is relevant and, of course, it is not disputed, clearly.

GAUDRON ACJ:   Of course it is not and if that is not – and (i) therefore ‑ ‑ ‑

MR DEAKIN:   But it still requires a tortious act.  I am sorry to cut across.

GAUDRON ACJ:   Yes, it still requires a tortious act, yes.  The question of fair arguable case would seem to go directly to that question.

MR DEAKIN:   Yes, your Honour, yes.  We do not need to trouble your Honours with (i) if your Honours were obviously satisfied that we had raised sufficient matters as to the others and if your Honours were minded, for instance, to say, “Look, we are persuaded there is sufficient arising from the others and we don’t want to complicate the matter by these procedural arguments.”, then again, your Honour, we obviously would be in your Honours’ hands on that issue.  But our concern is, your Honours, that this was squarely raised and it is directly relevant to one of the jurisdictional heads and the Court of Appeal simply did not deal with it and they were in error, when one looks at the transcript, in - - -

GAUDRON ACJ:   They may not have needed to deal with it, you see, is what I am putting to you.  You cannot complain simply that it was not dealt with if it was unnecessary for it to be dealt with in the way in which their Honours dealt with the issue and that is what I am suggesting to you.

MR DEAKIN:   I understand what your Honour is putting to me.

GAUDRON ACJ:   It was not necessary in the way they dealt with it.

MR DEAKIN:   Well, they did - unfortunately we do, regrettably, differ from their Honours as to how it was conducted and by reference to the transcript we would be confident of satisfying your Honours that the point was raised.

GAUDRON ACJ:   Yes, I am not suggesting it was not, and no one is suggesting it was not.  The question is you have to do more than show it was not dealt with, to show an error on the part of the Court of Appeal.  You have to show it was necessary to deal with it.

CALLINAN J:   It may have been quite immaterial in the end on another basis, whether they did or did not.

MR DEAKIN:   We understand that.  It would not, of its own, warrant a grant of special leave but there is a particular aspect of it, as a miscarriage of justice, in relation to this litigation because it is of relevance to a jurisdictional head which the court held, contrary to the conclusion of the trial judge, was satisfied.  Their Honours did not deal with our arguments on that issue and that is an injustice to the applicants who are not residents of this country.  And it is the only opportunity that we will have to deal with it.

GAUDRON ACJ:   Yes.  Well, we are not here to deal with academic questions, if they do not arise.  So, be aware of that.

MR DEAKIN:   I understand what your Honour is putting to me.  The third aspect is whether the court was correct in overturning the exercise of the trial judge’s discretion by rejecting the line of authority which the trial judge

had applied saying that when determining whether or not to exercise the discretion in favour of granting leave to proceed, the long line of authorities had always established that caution and restraint was required.  The Court of Appeal took the view that that was no longer to be applied and it is a matter of importance clearly going to the circumstances and the principles which are to be applied in applications to join foreign defendants.  We submit the Court of Appeal was in error in that respect.

GAUDRON ACJ:   Not to join them, surely:  in terms of leave to proceed.

MR DEAKIN:   Leave to proceed, yes.

GAUDRON ACJ:   I think one of the problems in the way – I had problems with your draft notice of appeal.  I still do, I should tell you.  One of them is the failure to distinguish between leave to proceed, service and joinder, I think.

MR DEAKIN:   Yes.  In the light of your Honour’s comments, if it arises, it most certainly will be amended.  But the point still arises, though, your Honour.  We understand the distinction your Honour is putting to us but the point still arises, they can only proceed either if there is a tortious act established on a good arguable case basis or if they establish, on a good arguable case basis, that we were properly joined to the proceedings, which is what (i) says, but we understand what your Honour is putting to us and when it arises, if it does, we will undoubtedly attend to it.

GAUDRON ACJ:   We do not need to trouble you further at this stage.  Mr Barry.

MR BARRY:   Your Honours, this matter takes a little bit of untangling procedurally but can I indicate, your Honours - - -

GAUDRON ACJ:   That is an understatement.

MR BARRY:   Yes.  I was going to quote to your Honours from what Sir Frederick Jordan said in Gilbert’s Case but I will resist the temptation.  The way in which the present applicants become joined is by the order that was made by Mr Justice Badgery-Parker which is set out on page 76, line 51, of the application book.  Now, what happened as a result of that was that instead of the ordinary operation of law that joinder would be from the date of the original issuing of the statement of claim, his Honour exercised a discretion to postpone the effective operation of the joinder until 20 May 1994 and the reason why his Honour did that is set out at page 78, and it was to protect the position of the applicants in relation to that joinder.

GAUDRON ACJ:   I do not understand.  Can you direct me particularly to the passage at page 78?

MR BARRY:   Yes, from line 9 to line 25.

GAUDRON ACJ:   I see.  He wanted to protect the question of limitation.

MR BARRY:   That is so.  The notice of contention, which my learned friend refers to, is set out on page 51.

GAUDRON ACJ:   Well, he says that simply cannot be done.

MR BARRY:   That is so.

GAUDRON ACJ:   Then it is a short point, is it not.

MR BARRY:   That is the end of it. 

GAUDRON ACJ:   But, no, he says that simply cannot be done.

MR BARRY:   They cannot be protected.  The only way they can be protected is by what they did before Mr Justice Grove but once an order has been made joining them, that then has the effect that they are parties to the proceedings and we move beyond the position of joinder to the position of service.

GAUDRON ACJ:   That is the area of debate.  That is what I said to him.  The difficulties that I was having with the notice of appeal did not seem to distinguish between service, which may be, in the context of the Rules, a joinder, and leave to proceed.

MR BARRY:   With respect, I agree with your Honour.  One then goes to look at what was before the Court of Appeal by way of the notice of contention, that is, what is the point of law that was sought to be raised which my learned friend says was not dealt with.  One will find that at page 51 of the application book and it is expressed as a notice of contention on two points:

(a)  that the proceedings insofar as they attempted to join the respondents were a nullity; and

(b)  that the respondents were never joined to the proceedings.

Well, the short answer to both those points is they were joined because that is what Mr Justice Badgery-Parker did when he granted leave to proceed, and in no legal sense were they a nullity.  So, there was no point which the Court of Appeal had to deal with at that level of inquiry, that is, in relation to joinder.

CALLINAN J:   At that time are you saying there should have been an appeal against Mr Justice Badgery-Parker’s decision?

MR BARRY:   Yes.

GAUDRON ACJ:   But they were not parties; presumably did not know about it until they were served.

MR DEAKIN:   We appeared as amicus curie, your Honours.

MR BARRY:   They appeared in those proceedings without submitting to the jurisdiction of the court. 

We then, your Honours, move on to the next stage of interlocutory process and that is in relation to the service.  At this level, then the question arises what are the appropriate rules to be applied by the Supreme Court when it comes to issues of service and issues of leave to proceed.  The court, which included the Chief Justice, decided that when it came to threshold or nexus questions, the appropriate test was is there a good arguable case that the party serving outside the jurisdiction satisfies the jurisdictional nexus.

GAUDRON ACJ:   That would seem to be wrong, would it not?  I mean, they either satisfy the jurisdictional nexus in terms of an allegation in their pleadings and bring them within it or they do not – or in terms of the record, or they do not.  It must be the next step whether there is a good arguable case, is it not?

MR BARRY:   What their Honours said is that “good arguable case” is the test to be applied in the jurisdictional nexus and on the question of leave to proceed, the test that was applied for that was whether there was a serious question to be tried.  Can I just, your Honours, flag the two passages where they identify that matter?  Page 91, line 49:

The first issue to decide is whether this Court should adopt the “good arguable case” test.  We conclude that it should, provided it is understood that the test is to be applied to establishing the jurisdictional nexus.

Now, in doing that - - -

GAUDRON ACJ:   They departed from the English decision, did they?

MR BARRY:   That is right.  Your Honours, with respect, there are, of course, different rules in different States in relation to these matters and there may well be different tests but the Supreme Court of New South Wales, in the application of its own Rules in these circumstances, has decided that that is the test that ought to be applied.  Now, whether that raises a special leave point is a different matter.  Our submission is that it does not.  This is simply a question of interlocutory matters affecting the application of the Rules of the Supreme Court of New South Wales.

Their Honours then went on, on the second limb, that was the leave to proceed point, where they then say – and the clearest passage in relation to that is at page 96, line 26 - where their Honours refer to leave to proceed.  They identify the fact that under the old Rules there was a need to establish a prima facie case and then their Honours say, at about line 19, referring to the English decision:

He held that:

“ … it was enough for Seaconsar to establish … that there was … a serious issue to be tried.”

A similar approach is appropriate for the Rules of this Court.

And our respectful submission, your Honours, is that once one untangles the procedural steps, that my learned friend’s notice of contention is, with respect to him, misconceived and even if it is as I thought it was, then it is caught up in the order in relation to the limitation period.  Can I explain that?  As I understand it, what is suggested is that because Mr Justice Badgery‑Parker made an order effectively joining them from 20 May 1994, the affect of that order was in some way a nullity because at that point of time the limitation periods had expired; more than six years had gone by.  But, your Honours, Mewett’s Case demonstrates that although that is what the Limitation Act says, that is not, as a matter of the proper construction of it, the way it operates because the effect of the order of the Supreme Court – in this case, the Court of Appeal – means that the action then remains not extinguished but, in effect, revived and validly “item of property” as it was identified in Mewett’s Case was not extinguished, it is a defence in bar.

Our submissions therefore, your Honours, are these:  that there is, when one untangles the forensic process, no error in the Court of Appeal, but even if your Honours feel that we are wrong in relation to that, this, in effect, involves interlocutory matters and it involves matters of the construction of the Rules of the Supreme Court of New South Wales which, in our submission, would not ordinarily be a matter for the grant of special leave.

On the question of the, as it were, ultimate liability, then at this stage of proceedings our submission to your Honours is that that is a matter which can only be determined once there has been a trial of the proceedings.  For the reasons set out in the judgment of the Court of Appeal their Honours have identified sufficient matters to satisfy them that there was a serious issue to be tried and it is only at a later stage, in our respectful submission, that your Honours would ever contemplate the granting of special leave to deal with those sorts of matters.

CALLINAN J:   Except people overseas are going to be put to enormous trouble and inconvenience in litigating a case which, if the applicants’ arguments are right, they should not be required to defend.

MR BARRY:   That, with respect, your Honour, must be the case with every case.

CALLINAN J:   Exactly.

MR BARRY:   It must then depend upon the circumstances of the particular case.

CALLINAN J:   And that is what might make the proper construction and application of these Rules an important matter.

MR BARRY:   Yes, your Honour.  Then it becomes then a question of identifying the nature of the causes of action, the importance of the particular subject matter, both to the plaintiffs and to the defendants, and various other discretionary factors.  The Court of Appeal thought that in the exercise of those discretionary matters that the exercise of discretion weighed in favour of the plaintiffs.  Now, with respect, your Honours may take a different view on those matters but it is not an error of the character which would warrant a grant of special leave for views on matters of fact of that nature to differ.

CALLINAN J:   The applicant does not want to ventilate discretionary matters.  The applicant wants the Rules properly construed.

MR BARRY:   But the applicant does want to ventilate discretionary matters.  The applicants say that the Court of Appeal was wrong to say that there was proximity.  The Court of Appeal was wrong – well, they did not

say that – to say that there was a causation in fact question arising.  The applicants do want to ventilate factual matters and that is, with respect - - -

CALLINAN J:   But on the pleadings, whether causation arises or not, is not merely a discretionary matter; whether, on the pleadings, the case as pleaded is capable of establishing causation is not a discretionary matter.

MR BARRY:   But whether to grant leave to proceed is a discretionary matter which, in turn, involves a consideration of matters of fact about what the ultimate facts might be.  The Court of Appeal thought the ultimate facts might lead to the situation where there was a serious question to be tried at the interlocutory level and material which was fit to be considered by a jury, as this ultimately will be considered by, in relation to liability.  Those are discretionary matters.

CALLINAN J:   Well, some of them are; not all of them.

GAUDRON ACJ:   They are not entirely at large, however.

MR BARRY:   No, that is so, with respect, your Honour.  Your Honours, they are our submissions.

GAUDRON ACJ:   Yes, thank you, Mr Barry. 

Mr Deakin, there will be a grant of special leave in this case.  You might take the opportunity to have a look at your draft notice of appeal.

MR DEAKIN:   Yes, your Honour.

GAUDRON ACJ:   The Court will now adjourn until 2 o’clock.

AT 12.40 PM THE MATTER WAS CONCLUDED