Agar v Hyde, Agar v Worsley
[2000] HCATrans 110
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S159 of 1999
B e t w e e n -
A E AGAR & ORS
Appellants
and
LUKE DOUGLAS HYDE
Respondent
Office of the Registry
Sydney No S160 of 1999
B e t w e e n -
A E AGAR & ORS
Appellants
and
PETER MICHAEL WORSLEY
Respondent
GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
HAYNE J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 23 MARCH 2000, AT 9.36 AM
(Continued from 22/3/00)
Copyright in the High Court of Australia
________________________
GLEESON CJ: Yesterday, Mr Deakin, there was some exchange in relation to the matter of the time that elapsed between the judgment of the Court of Appeal and the hearing of the special leave application. Judgment of the Court of Appeal was delivered on 19 October 1998. Applications for special leave to appeal were filed on 16 November 1998. On 17 December 1998 an amended application for special leave to appeal and summaries of argument of the applicants were filed. On 3 February 1999 the respondents’ appearance was filed.
On 17 March 1999 the Registry contacted the respondents’ solicitors asking as to why no summary of argument had been filed. On 22 March 1999 the Registry contacted the respondents’ solicitors asking why no summary of argument had been filed. I am sorry, on 9, 17 and 22 March the Registry contacted the respondents’ solicitors asking why no summary of argument had been filed. The Registry was informed that the solicitors for the respondent had not noticed that they had been served with summaries of argument by the applicant. On 25 March 1999 the respondents’ summaries of arguments were filed.
On 27 April 1999 a draft index to the application book was forwarded by the Registry to the parties. On 4 May 1999 the parties were notified by the Registry that the applications would not be able to be listed in June because the papers were not complete and would possibly go into the August 1999 list. On 11 May 1999 the
applicants’ reply was filed and on 11 May 1999 an appointment was made with the Registrar to settle the index to the application book. Yes, Mr Deakin.
MR DEAKIN: Thank you, your Honour. When I did address the Court yesterday, your Honours, I was not aware of the details that your Honour has just put to us, but we obviously accept all of what your Honour has said and to the extent to which the appellants are in any way responsible for the delay that has occurred in this matter, it is to be regretted and we apologise to the Court.
GLEESON CJ: Yes, thank you, Mr Deakin.
MR DEAKIN: Thank you. Your Honours, we have concluded what we wanted to say, except before moving to discretion, subject to two matters. We did not give your Honours, I do not think, a reference to the two other judgments of the Court in Mewett’s Case. I think I gave your Honours a reference to Justice Toohey’s judgment at 516 to 517. I do not need to take your Honours to them, but could I just give your Honours a reference to what are the two other relevant extracts from judgments of the Court: Justice Gaudron at 529 to 530 and Justice McHugh at 532 to 533.
Can I return very briefly only, your Honours, to one other matter which I omitted to draw to your Honours’ attention in relation to what the Court of Appeal had to say on the issue of jurisdiction and that is recorded at 741 of the book, volume 3, of course. Their Honours’ conclusion was that although all other issues in the case would, of course, be determined only at the trial of the matter, the question of jurisdiction was finally determined at the leave stage and that is what is recorded at line 20 at 741:
Of course, satisfaction of the jurisdictional nexus and the favourable exercise of the discretion permitting the proceedings to go forward to trial in the Supreme Court…..will not be the end of the issue, other than for jurisdiction.
So the court’s approach was that everything else, of course, would be determined at trial but jurisdiction is finally disposed of at the leave application stage. Now, that reinforces what we were putting to your Honours yesterday that something more than just the perusal of the statement of claim, something more than a prima facie case, et cetera, be required because if jurisdiction is to be finally determined at the leave application, then a higher standard is required and we have put our submissions as to that matter, and I do not need to further address your Honour. In other words, this is the only point at which jurisdiction is addressed, is on the leave application and it calls for a higher standard, as we put to your Honours yesterday. Could we move to discretion?
Your Honours, I do not think I need to read to your Honours the approach that the trial judge did take on the issue of discretion but could we remind your Honours that he dealt with it from page 649 line 14 through to 651 line 25, and he spelt out in those passages the factors that he took into account in exercising his discretion as an alternative basis for why the plaintiffs’ applications were refused and why the defendants’ applications were upheld.
It is our submission that the factors that his Honour invoked were all matters properly invoked by him and that there is no error demonstrated in the discretionary factors that his Honour referred to.
GAUDRON J: What do you say that discretion is: a discretion to refuse to exercise jurisdiction, I presume?
MR DEAKIN: Effectively, I suppose that is what it is, your Honour.
GAUDRON J: Then what factors condition the exercise of that discretion in favour of the defendant?
MR DEAKIN: In addition to the ones that the trial judge has drawn attention to?
GAUDRON J: Just as a general principle. What in your submission are the considerations that ‑ ‑ ‑
MR DEAKIN: We were going to provide a comprehensive list…..and, if it is convenient for us to do it, we will do it now, your Honour.
GAUDRON J: You have it in writing, have you? It is in your submissions?
MR DEAKIN: It is not comprehensively set out in the written submissions but the topic is addressed at - paragraph 45 is where it commences in the written submissions but the factors are not precisely enumerated.
GAUDRON J: It really does not say anything of substance to say there is a principle of caution. That tells you nothing.
MR DEAKIN: It may tell us nothing, but it is the starting point, is how we would put it, and it is a factor that is relevant to the exercise of discretion. That longstanding authority says that caution is required. It is a factor. It does not provide content to it, but it is the ‑ ‑ ‑
GAUDRON J: That may well have been a reasonable approach where you required leave to serve, so the jurisdiction was, in a sense, discretionary. Once you move away from that to rules which, in a sense, define the metes and bounds of this jurisdiction, it seems to me that it may well be different.
MR DEAKIN: It may be different. But, your Honour, we would submit as Lord Goff said in the Seaconsar Case, some adjustment, obviously, should be made these days, because when these principles were first enunciated the degree of inconvenience was often a lot more because of the difficulties of transport. But as Lord Goff says in the Seaconsar Case, the principle is still intact.
GAUDRON J: Well, that would cover inconvenient forum, I suppose, in terms of 6A(2)(b), is it?
MR DEAKIN: Yes, your Honour, at least that, we would put.
GLEESON CJ: Mr Deakin, I am happy to say that, by only about four months, I was not on the Rule Committee at the time these rules were amended in 1988. But I am wondering whether or not the explanation of the abolition of the requirement of leave to serve and the alteration of the rules to a system under which, as Justice Gaudron said, the metes and bounds of the circumstances in which you can serve are defined and then you get leave to proceed, I am wondering whether the reason was not a very practical one, that is, to make it unnecessary for the time of officers of the court, or judges of the court, to be taken every time somebody wanted to commence a proceeding of this kind, bearing in mind that many of these proceedings would go by default.
MR DEAKIN: Yes.
GLEESON CJ: I can say I do not know, but whether the purpose of the amendment to the rules that occurred in June 1988 was nothing more than that, to remove the necessity of somebody having to make a substantive application every time one of these actions was commenced.
MR DEAKIN: And for the Court’s time to be taken up with those applications which may in some circumstances, perhaps many circumstances, never require the Court’s time because defendants may well be prepared to and perfectly content to appear in the jurisdiction. So, we would respectfully submit that is a very likely explanation. The Bank of America Cases, as we pointed out to your Honours yesterday, does not support the view that the change in the rules did have some drastic effect. It supports the view that really jurisdiction is still the key ingredient to the operation of all of these rules and we do respectfully submit the Bank of America Case was correctly decided.
The Bank of America Case does not decide what is the test to be applied because the court in that case said whatever test is applied the case does not satisfy the jurisdictional requirements in that case but it, nevertheless, is authority for the proposition that there was no drastic change intended or in fact achieved by reason of the fact that under the old rules leave was required in advance and under the new rules it is only necessary for a plaintiff to apply for leave if the defendant does not submit to the jurisdiction of the Court. We would submit that that is a correct conclusion to draw and perhaps reinforced by what your Honour the Chief Justice has put to us.
GUMMOW J: Now, in relation to this motion that you have got to tremble and be cautious with this exorbitant jurisdiction, the latest edition of Dicey & Morris, that is the 13th edition published this year, footnote 18 on page 307 of volume 1, I would have thought puts paid to that in a way. The learned editor says:
it is suggested that the jurisdiction exercised under Ord 11 is not exorbitant, since it is similar to the jurisdiction exercised by many countries, and is also in many respects similar to the rules in the 1968 and Lugano Conventions.
And there is this reference to Dr Collins’ article in 107 LQR 10 pages 13 and 14. So I think this is a bit of a furphy myself.
MR DEAKIN: With respect, our submission is to the contrary but I do not want to take up further time. The submission that we put on it is that it was not demonstrated to be any relevant consideration for his Honour to take into account and that really is the correct analysis of the position. There was, and there is still, long‑standing authority which has not been overruled that says that such caution is appropriate and we would submit even if the concept becoming outmoded, it is still a doctrine which applies and we have set out ‑ ‑ ‑
GLEESON CJ: Did it ever mean anything more than that you just keep in mind the seriousness or the potential seriousness of the consequences of what you are doing?
MR DEAKIN: No. That is all it is, your Honour, and that some restraint and caution was called for because of the fact that one is bringing – one is, firstly, extending the long arm of jurisdiction outside of the jurisdiction of the court where it is ordinarily in personam and one is bringing into the jurisdiction ‑ ‑ ‑
GUMMOW J: Look, restraint in giving the words in 1A the meaning they have. You say, “This is what it says, but, oh, dear, I have got to be cautious. Maybe it means something else”?
MR DEAKIN: Well, no, just caution and restraint, your Honour, and perhaps ‑ ‑ ‑
GUMMOW J: Restraint in what?
MR DEAKIN: In how one approaches the question as to what the plaintiff has demonstrated.
GUMMOW J: You mean in the exercise of a discretion?
MR DEAKIN: Yes.
GAUDRON J: And you are talking only, are you, in terms of discretion to decline to exercise jurisdiction at this stage?
MR DEAKIN: There are two components to it.
GAUDRON J: Yes.
MR DEAKIN: The first is in construing the rules, caution ‑ ‑ ‑
GUMMOW J: I do not understand that, I am afraid.
MR DEAKIN: Well, that is what the authorities support, your Honour.
GUMMOW J: I do not think they do actually.
MR DEAKIN: I am sorry, your Honour?
GUMMOW J: I do not think they do. I think they are directed to this question of discretion, bound up with the need for leave, which does not apply here. Anyhow, I will not go over it again.
MR DEAKIN: It is our submission that the authorities do support two components of restraint, the first being a restraint in the construction of the rules dealing with foreign jurisdiction and the second more generalised restraint or caution to be exercised before the long arm of jurisdiction is extended overseas. We have given your Honours reference to those authorities in paragraph 53 of the written submissions and some of them are quite recent cases, although they are most recently in this Court I think in the decision of Justice Brennan that we have already looked at in the Contender Case and the American authorities which we have given your Honours a reference to, again, perhaps fairly stated the effect of them in the judgment of O’Connor J in the decision that we have given your Honours a reference to 106 ‑ ‑ ‑
GLEESON CJ: But why do you not just look at on a case‑by‑case basis? I mean, you use this expression “overseas” but overseas includes New Zealand ‑ ‑ ‑
MR DEAKIN: Yes, your Honour.
GLEESON CJ: ‑ ‑ ‑ as well as London and Iceland.
MR DEAKIN: Yes. There are matters of degree, manifestly there are matters of degree, and one cannot globally just say in every instance but on the facts of this case the trial judge said these are individuals based in countries far distant from Australia and there is authority that says some caution should be exercised before they are brought before this jurisdiction, and that is as far as it goes. The simple submission we are putting to your Honours – and perhaps we are taking longer than we need to on it – is that it cannot be demonstrated, with respect, to be an irrelevant consideration, something that he ought not to have had regard to.
GUMMOW J: We are trying to find out the components in this discretion. We have one so far. What are the others?
MR DEAKIN: Could we just ‑ ‑ ‑
GUMMOW J: You referred us to paragraph 45 of the written submissions. They do not help. What are the others?
MR DEAKIN: Could we deal with the relevant aspects of discretion that we rely on in this case in addition, to save duplication, to those that his Honour has referred to in his judgment. The trial judge did point out in his judgment, and we have made this point already, that none of the individual appellants had the power to do anything in relation to the laws of the game. It would only be at the instigation of the member unions themselves. That is clear from bye‑law 12 and only passed by a 75 per cent majority. We draw to the Court’s attention that the individuals concerned had varied quite a lot over the years and were not the same number of people all the way through, your Honours having evidence of the various minutes of the meetings that preceded 1986 and 1987.
Secondly, we point to the fact that the purposes for which the International Rugby Football Board existed spelt out in the bye‑laws was for international games, games between nations, not games played at a sub‑district level or district level in remote countries. Thirdly, we point to the fact that the plaintiffs had levelled substantially identical allegations against the local defendants. In defence of those allegations - we put it to your Honours yesterday – none of them have come forward to say, “We can’t change the laws of the game. It’s exclusively a matter for the international body to do that”.
GLEESON CJ: Mr Deakin, I saw a reference in the papers somewhere – I forget now where – to the effect that the explanation that was given by the plaintiffs, perhaps in relation to the limitation application – I am not sure – as to why they were joining your clients at all was because they wanted to head off the possibility of an argument by the local defendants that they were in some way bound to implement these international laws. If that were the sole reason advanced as to why these people were being brought into this litigation at this stage at all, would it be a relevant discretionary consideration to consider whether there was any substance in the fear which is said to account for bringing them in now?
MR DEAKIN: We would respectfully submit, yes, and it is only an apprehension. That is how the case has been put to ‑ ‑ ‑
GLEESON CJ: Well, where did I get that idea from?
MR DEAKIN: The Court of Appeal records it, your Honour, in its judgment, that that is the basis of the plaintiffs’ case. That they are apprehensive that the other defendants might say, “It is not us that can change the laws of the game”. That is the basis upon which it has always been put.
GLEESON CJ: Perhaps Mr Bell could give us a reference to the page in the papers where that is mentioned.
MR DEAKIN: Yes, I will ask my learned junior to do it. It is expressly referred to that it is the plaintiffs’ apprehension that – and that is the basis upon which they, late in the piece, as we all know, long after they joined the local defendants, sought to bring the international body into the proceedings. Your Honours, can we just put this? Relevant to that is that if anything that occurred in Australia which, after all, can only be the relevant area, we would have thought, as a starting point at least, did give rise to some obligation on the international Board to act or to take some step in relation to the laws of the game, then it could only have been through the Australian member Union, namely, the ARFU.
All of the plaintiffs’ remedies against the ARFU, of course, are available without argument. They are a party to the proceedings and the plaintiff will be entitled to fully pursue its remedies against that local body. It is only because the plaintiff seeks to go beyond the ARFU to extend the long arm jurisdiction to all the other representatives who were at the meeting that this case even arises. Their remedies are here; the body that was properly responsible, even assuming everything in the plaintiffs’ favour for the game in Australia, leaving aside the problems about filtering all the way down to district level, must have been the Australian Rugby Union.
They have always been a party. They tried to be excused early in the piece and they failed in their application. At the very foot of page 735 is what I had in mind, your Honours. Their Honours, it should be noted, are not completely correct about the ARFU because the ARFU did, in fact, seek to be excused from the proceedings and made an application which Justice McInerney disposed of, which is in the book ‑ ‑ ‑
GLEESON CJ: That is not the part I had in mind. There is an assertion somewhere in the papers that the reason advanced by the plaintiffs as to why, at this late stage of the proceedings, they were bringing these other people in was as I summarised.
MR DEAKIN: I think your Honour is right. That is one reference but I think there is another reference to it, your Honours. I will get my junior to attend to it. Could we continue with the list of matters that we do rely upon, your Honours, as factors going to the exercise of the discretion? These are men who only attended one meeting a year in the affairs of this organisation and they were wholly unremunerated for their attendance apart from their expenses. They are truly voluntary administrators who attended only one meeting each year to attend to those matters that arose from the administration of the game at an international level.
CALLINAN J: Like the Olympic administrators.
MR DEAKIN: Well, I think the Olympic administrators are not, of course, able to give any evidence as to what they do. I would have thought they would be meeting a lot more often than once a year, your Honours.
CALLINAN J: It is the remuneration I wondered about. Do not trouble about it.
MR DEAKIN: I am sorry, your Honour, unlike the Olympic administrators, indeed, your Honour. Yes, and, your Honour, the evidence is that by 1995 even, when the date of the last affidavits were filed, 1996, they had all, with the exception I think of one, ceased to have any involvement in the affairs of the International Rugby Football Board.
GLEESON CJ: There was also some suggestion that some of them had died?
MR DEAKIN: Yes, your Honours, there had been four deaths of those attending these meetings since the meetings occurred and perhaps we should spell them out: Mr Kendall-Carpenter has died, Dr Craven has died, Mr Blazey has died, and Mr Connon has died. Mr Connon’s, in fact, death – it may need to be addressed in some evidence at some stage, but Mr Connon’s death has occurred during the pendency of this appeal. So, of those who attended, the ranks are steadily diminishing and only one of them, even in 1996 had any continued involvement with the IRFB at all. We did give your Honours a reference to Cameron v Hogan, it is bit somewhat antiquated in a way, but Cameron v Hogan is relevant only because of the nature of unincorporated associations and could we just invite your Honours very briefly to turn to (1934) 51 CLR ‑ ‑ ‑
GLEESON CJ: Cameron v Hogan has long since been overtaken by events, has it not, Tutty v Buckley just for a start
MR DEAKIN: It has. Yes, it has, your Honours, but the only relevance of it is that their Honours dealt there with why at that stage of the law there was no remedies provided by way of contract to members of unincorporated associations. The natural justice principles, of course, as your Honour says, overtaken all of this to provide such remedies, but at 370 in the joint judgment of four members of this Court, their Honours refer to the fact that “no actionable breach of contract was provided by either the common law in equity to members of an association”, and it is really the reason for that that we wanted to draw your Honours’ attention to it. About point 8 on the page, 370, their Honours say:
One reason which must contribute in a great degree to produce the result is the general character of the voluntary associations which are likely to be formed without property and without giving to their members any civil right of a proprietary nature. They are for the most part bodies of persons who have combined to further some common end or interest, which is social, sporting, political, scientific, religious, artistic or humanitarian in character, or otherwise stands apart from private gain and material advantage.
It has been overtaken but it is appropriate to this case. These are men who give of their time, who gave of their time, without reward, except for the reimbursement of expenses, for assisting in the administration of the game they love and we would submit it be another factor to be taken into account in the exercise of discretion.
Next, we would remind your Honours that this is a cause of action that has never been recognised against an administrative body, let alone an international administrative body anywhere in the world, and the degree of remoteness, as the trial judge has referred to, is extreme between that body in its position in London, and a district game played in either Sydney or country New South Wales many months later. The place of all the meetings were outside Australia and, with the exception of the Australian representatives, most of the appellants had no connection with Australia at all.
Bye-law 18, that we looked at yesterday, expressly invokes the law of England in relation to any dispute arising from the bye-laws and the English courts are given the jurisdiction to determine any dispute arising from the bye-laws. Page 26 of the appeal book, which is the Hyde statement of claim, particular (d) refers to what was known or ought to have been “known by reason of the available medical evidence” at the time. It is important to recognise that the only medical evidence adduced in this case available is medical evidence that emerged after the meetings had taken place and it was only published in Australia. The article is reproduced at 239 in volume 1 and it dates from August 1987 after both meetings had occurred and that is the quote available – medical evidence – that it is said should have given rise to some attention to the law changing process that the plaintiffs rely upon.
There was no evidence available at all to support any identification of this risk as at the date of the meetings. The article was not even published in Australia until August 1987. So, they would be a list of discretionary factors that we say are appropriate to take into account, and, the strength of the case is already dealt with by the trial judge.
McHUGH J: But, there had been over a hundred spinal injuries, had there not, between some period prior to 1986? Many of them were rugby league.
MR DEAKIN: Yes.
McHUGH J: But, why would not that be a matter in which the Court could hold, at least at this level, would be within – when I say at this level I mean in this context – that it would be within the knowledge of the Board?
MR DEAKIN: It may be within the knowledge of - your Honours could infer, I suppose – it may be within the knowledge of the Australian member of the Board but we would respectfully submit that one could not come to any conclusion beyond that, even at this stage of an inquiry. As I think the Chief Justice said yesterday, there are injuries that occur in rugby union matches every day of the week at every level of the game. They vary in severity, and, of course, this is at the very top end of severity, but it is part of the game that injuries are sustained.
McHUGH J: That can be accepted, but the magnitude of the risk of injury is always a relevant factor in determining duty.
MR DEAKIN: I am sorry, your Honour, I was distracted. I apologise, your Honour.
McHUGH J: I was saying, it may be accepted that the risk of injury is inherent, but the question is whether there is a duty to guard against unnecessary risk of injury.
MR DEAKIN: “Unnecessary” is a very difficult word to apply in a contact sport, your Honour.
McHUGH J: It may be, but it is the test that has been used for generations in respect of ordinary negligence.
MR DEAKIN: We also would draw attention to this, your Honours, that of those injuries that your Honour did identify, many of them – and I have not done an exact calculation – but many of them had nothing to do with scrums. They were injuries arising from totally different circumstances.
McHUGH J: Well, some of them were from tackles, but I think a very significant percentage was from scrums, particularly late in the season as the game becomes more competitive, and players become more aggressive.
MR DEAKIN: Well, your Honour, the facts are set out in the article and there would be a knowledge in Australia, it is fair to say, of the fact that injuries were being sustained. But we would draw the line at accepting what your Honour has put to us beyond Australia.
GLEESON CJ: The passage I was referring to earlier is at the bottom of page 680 and the top of page 681.
MR DEAKIN: I am very grateful to your Honour, and I apologise for not having been able to draw it to your Honour’s attention. Yes, that is the passage I recall. Thank you, your Honour, I am grateful. And, your Honour, I do not think I need to put the point again. The defences do not raise it and it, surely, at this stage of the proceedings when they have been on foot for so long, if it was going to be relied upon by any of the defendants, they would have put it into their defences. It is at the forefront, one would have thought, of any defence of the proceedings if the plaintiffs’ apprehension is, in fact, founded on any fact.
GLEESON CJ: Mr Justice Grove at page 638, line 25 says they had pleaded that, or that it was stated in argument.
MR DEAKIN: It was stated in argument. Well, your Honours, we have actually given your Honours the defences. They are in the book volume 1, pages 38 to 54 and they include no such allegation.
GUMMOW J: How has it got to the stage of defences?
MR DEAKIN: By the local defendants.
GUMMOW J: By the local defendants?
MR DEAKIN: I am sorry, that is the point. It is only the local defendants who have put on defences and none of them have invoked what the plaintiffs are apprehensive about.
GLEESON CJ: Yes. So the proceedings have been on foot against the local defendants for about 10 years.
MR DEAKIN: Yes, your Honour. The first statement of claim dates from at least 1988. Yes, 1988. So, 12 years, your Honour.
GLEESON CJ: We must not rush them.
MR DEAKIN: Could we turn back then – that is the list that your Honours Justice Gaudron and Justice Gummow have requested. And can we emphasise that is in addition to those ‑ ‑ ‑
GUMMOW J: They are particular matters of fact. I was trying to find a matter of principle.
MR DEAKIN: In terms of principle ‑ ‑ ‑
GUMMOW J: What particular discretion are we talking about first? Are we talking about the discretion under the paragraph the Chief Justice referred to yesterday in Part 11 rule 8(h)? What he had been saying really seems to be summed up by saying this would be oppressive to your overseas clients.
MR DEAKIN: It could be put as high as that, yes, your Honour. It is certainly severely inconvenient. In terms of broader principles, we would invoke ‑ ‑ ‑
GUMMOW J: Because this is a claim that just could not succeed at trial.
MR DEAKIN: Yes, we put it at least at that level, your Honour, and we say in addition – and I am sorry to re-agitate troubled waters – but the limitation point, that is an important point of principle as to why the discretion should not be exercised leaving everything else aside. The appellants have only been joined after the limitation period has expired. The trial judge, your Honours will recall, referred to that decision of Leal v Dunlop Bio‑Processes International Ltd and we would respectfully submit that is directly in point. It is dealing with discretion and says it would be wrong in the exercise of discretion to allow a party against whom a limitation period has expired to be brought into the jurisdiction. We would respectfully submit that is the correct approach.
Could I then identify what happened in the Court of Appeal, because I think we do have to deal with that of course as well. The Court of Appeal took the view that the trial judge erred in the exercise of his discretion because – we have already dealt with the foreign restraint point. That was the Court of Appeal’s view that that was an error by the trial judge in how he dealt with the discretionary aspects. We do submit that even if we are wrong about the general restraint that we submit still survives on the authorities, on the facts of this case the Court of Appeal was wrong in the reasons they attributed for why the restraint should not be exercised because, as we will take your Honours to it, the Court of Appeal’s view was that because this was a global enterprise, an international organisation spanning the globe, that it would be inappropriate to do it. As we will be taking your Honours to the evidence, that simply was not the evidence in this case. So the facts were misconstrued by the Court of Appeal in their reasoning as to why the restraint should not be exercised in this case.
Their Honours also took the view that the trial judge was wrong in relation to the location of the tort. We do not need to go back to that. We submit the trial judge was right, the Court of Appeal was wrong, and they were the principal bases upon which the Court of Appeal overturned the exercise of discretion. Our starting point in pointing to what we say were errors on the part of the Court of Appeal is the Contender Case that reminds your Honours that this was an exercise of discretion on a matter of practice and procedure and it did call for caution and restraint by the appellate court in reviewing that exercise of discretion on a matter of practice and procedure. The Court of Appeal neither referred to nor invoked any such principle. That is our first criticism of their Honours in how they exercised their review of the discretion by the trial judge. That is a fairly fundamental failure and we do rely upon it as to why the Court of Appeal was wrong in what it did. The location of the tort - we do not need to go back to that again.
The third aspect in relation to restraint, I do not think I need to address your Honours any further on what the law is about it, but we do wish to address your Honours briefly on the facts that the Court of Appeal relied upon in saying that it was not applicable in this case.
Their Honours at a number of passages in their judgment when dealing with this aspect of the case describe the appellants as an international organisation. There are various descriptions of it. Page 718 line 30 it was a defendant that did not “have a definite residence” and line 36:
The IRFB is a genuinely international organisation. It conducts a global enterprise which operates throughout the world. It has a direct influence on conduct which occurs within Australia. If perceived as a multinational unincorporated body the IRFB’s members include a resident of Australia.
Similarly at 719 lines 5 and 15, it “does not have a separate corporate personality” but they refer to it as “a genuinely global enterprise” and there are a number of other passages to similar effect, 722 line 20 and 726 line 5.
GLEESON CJ: I am just not clear about what appears on page 718. I thought all your clients were people who resided outside Australia.
MR DEAKIN: Yes.
GLEESON CJ: Then what has happened to the members of the IRFB who are residents of Australia?
MR DEAKIN: They are a party and they are an appellant. They were served in London. We do not quite know why, your Honours, but they were.
GLEESON CJ: I am sorry, are some of your clients people who reside in Australia?
MR DEAKIN: Yes, your Honour, there are two. They are separately identified as defendants in each proceeding.
GLEESON CJ: So although they were served out of the jurisdiction, they could very easily have been served within the jurisdiction?
MR DEAKIN: Indeed, your Honour, indeed.
GLEESON CJ: Now, do the arguments that you have addressed to us so far apply with equal force to the Australian residents who could have been served within the jurisdiction as to the foreign residents who could only be served by resort to “long arm” jurisdiction?
MR DEAKIN: Your Honour, they have many of the elements of what we have invoked but clearly, your Honours, they have to be treated in a separate way because, although leave was required to proceed against them because they were served outside the jurisdiction, the fact of the matter is, although there is no evidence of it, there is no dispute about it, they are – or at least they were – I do not know what the position is at the moment – but they were residents of Australia.
GLEESON CJ: Well, that just seems to me to be a twist to the case that I had not really picked up in either the reasoning of Justice Grove or of the Court of Appeal. Now, when you come to apply these discretionary considerations that you have been telling us about, is it material that in the case of at least two of your clients, if anybody had taken the trouble to serve them in New South Wales or in Australia, none of these considerations would have arisen?
MR DEAKIN: The problem would not have arisen, your Honour, no.
GUMMOW J: How do we find out who these people are?
MR DEAKIN: They are separately identified as defendants, your Honours. In the Hyde matter they are on page 18. They are described as the eighth defendants.
GLEESON CJ: Well, Mr Turnbull is one of them, I suppose.
MR DEAKIN: I am sorry, your Honour.
GLEESON CJ: Mr Turnbull is one of them I presume.
MR DEAKIN: Yes, Dr Vanderfield and Mr Turnbull.
GLEESON CJ: Dr Vanderfield and Mr Turnbull, right.
MR DEAKIN: They are two of the four eighth defendants, if I can put it that way. The other two are New Zealand representatives. But Dr Vanderfield and Mr Turnbull are the Australian representatives who attended the 1986 and 1987 meeting.
GUMMOW J: Where were they served?
MR DEAKIN: They were served in London, your Honour.
GAUDRON J: How many then, if you subtract the Australians and subtract those who are unfortunately deceased, how many of these defendants are we now talking about who are foreign?
MR DEAKIN: There are 10.
GAUDRON J: Ten foreign?
MR DEAKIN: Ten foreigners, yes, your Honour.
GUMMOW J: Who are they?
MR DEAKIN: Ten foreign individuals.
GUMMOW J: We have to know who they are.
MR DEAKIN: They are all – I think the best place to find them is only in the Hyde matter. They are – let me just check my numbers again, your Honour – Mr Agar, Mr Connon – I am sorry, Connon is dead – Mr Smith, Mr McKibbin, Mr Dawson, Mr Treharne, Mr Rowlands - Craven is dead - Professor Eloff, Mr Ferrasse and Mr Martin.
GUMMOW J: Thank you. The ones you have not named are dead.
GLEESON CJ: Would you mind, at some stage, before the hearing of the argument is completed getting Mr Bell to put on a piece of paper a list, first of all, of the people who attended the 1986 meeting who are since deceased. Second, those who attended the 1986 meeting who are ordinarily resident in Australia and who could have been served within the jurisdiction and, finally, those survivors of the 1986 meeting who are ordinarily resident outside Australia.
MR DEAKIN: Yes, your Honour.
GLEESON CJ: Thank you.
MR DEAKIN: We have done a document that almost does have that description but we will have it done as your Honour has requested.
GLEESON CJ: And, as I would understand it, that covers the field except for the New Zealand Rugby Football Union.
MR DEAKIN: Yes.
GLEESON CJ: Which is an incorporated body.
MR DEAKIN: It is, your Honour.
GLEESON CJ: And which is also one of your clients.
MR DEAKIN: Yes, your Honour, and within the eighth defendant, as your Honours have seen, the individuals who attended as representatives of that New Zealand body have also been joined.
GLEESON CJ: Now, can you just remind us what is the explanation of the fact that of all the unions who were members of the IRFB and who sent representatives to the 1986 meeting, only the New Zealand Union has been sued. Is it because it is the only one that is incorporated?
MR DEAKIN: Yes, at the time, I think. The Australian one is now incorporated but I think I am right in saying it was not incorporated at the time and it is the only incorporated body which was at the time a member of the IRFB. All of the others, which is another important point in looking at the representatives attending, were, in turn, also unincorporated associations, which is another problem in the case for the plaintiffs, in our respectful submission.
CALLINAN J: Mr Deakin, can I just ask you, could I ask you two questions? The Court of Appeal gave leave under section 60I of the Limitation Act. Where do I find a judgment, at first instance, in relation to that?
MR DEAKIN: Justice Grove took the approach that because he was of the view that there was no foundational duty of care and because, in the exercise of his discretion, the proceedings ‑ ‑ ‑
CALLINAN J: He did not have to decide that point.
MR DEAKIN: He did not have to decide it.
CALLINAN J: No. So, that matter was decided only once and decided by the Court of Appeal, is that right?
MR DEAKIN: Yes, your Honour.
CALLINAN J: There was full argument about that before the Court of Appeal?
MR DEAKIN: There was, yes.
CALLINAN J: Yes. The other questions I was going to ask – I am sorry to take you away from your argument – at page 740 the Court of Appeal say that the President was of a different view with respect to, I think, a meeting ‑ a meeting overseas.
MR DEAKIN: Yes.
CALLINAN J: It could not in any sense be located in Australia or any …..but then their Honours say at line 50:
that there is a…..“local tort” in the sense discussed in Voth”.
Are you able to tell me where in Voth that discussion is or what the reference is to in Voth?
MR DEAKIN: I have to say I could not find the words “local tort” anywhere in the decision of this Court in Voth. I am a little mystified by that, I regret to say, your Honour.
CALLINAN J: I wonder whether their Honours are really referring to what they had earlier said, which is directly from Voth, that the actions can travel in time and space. I think they were referring in that sense to a misrepresentation which was language that was picked up by the Court of Appeal but I might say, without referring to the qualification on the next page in Voth, that there is no such general rule, assuming all of those analogies of defamation and misrepresentation to be apt any way.
MR DEAKIN: Yes.
CALLINAN J: But, am I right that there is no passage in Voth, and perhaps Mr Jackson might be able to refer us to something, but there is no passage in Voth which discusses “local tort” in that sense.
MR DEAKIN: I have not been able to locate any reference in Voth to the words “local tort”. It is obviously the centre of what the Court decided in determining whether it was properly described as a local tort or whether it was a tort committed outside the jurisdiction, but ‑ ‑ ‑
CALLINAN J: I just cannot get it out of Voth at the moment, that is all. Anyway, I am sorry.
MR DEAKIN: What is not mentioned anywhere in Voth or anywhere else in the authorities that we have been able to find is what the Court of Appeal refers to as the relevant conduct in determining where, “The cause of action” arises, to look at its “natural and intended effects.” That is what the Court of Appeal says at 739.
CALLINAN J: That is not what Voth says, anyway.
MR DEAKIN: It is certainly not what Voth says. Voth says exactly the opposite, you should not look to the consequences, but the Court of Appeal seem to conclude, and there is no authority that we are aware of that uses those words anywhere, that one is entitled to and one ought to look at the natural and intended effects of the conduct in determining the location of the tort, and, yet, that is the wording that the Court of Appeal adopts in saying that it occurred in New South Wales.
CALLINAN J: All right. I am sorry, just one other matter, just back to the limitations point, and you may not want to deal with this at the moment, but, is there any evidence anywhere which might suggest that these matters, the relevant matters, the matter of the decisive character, whatever the language of the section is, were within the means of knowledge of the respondents because that seems to have been brushed over. The Court of Appeal has focussed upon what in fact, it seems to me, the respondents knew rather than what in fact was within their means of knowledge. Now, you may not want to deal with that at the moment, but, I will mention it and Mr Jackson will no doubt keep it in mind, too.
MR DEAKIN: We would respectfully agree with, your Honour. It was glossed over and they focused on – there is simply no evidence as to what mean of knowledge the individuals had, what would Monsieurs Ferrasse and Martin from Paris know about any of these matters.
CALLINAN J: No, no, I am sorry, the respondents need some knowledge.
MR DEAKIN: Oh, I am sorry, the respondents, the present respondents. I am sorry, I did misinterpret what your Honour was saying, the present respondents’ knowledge?
CALLINAN J: Yes.
GLEESON CJ: Keeping in mind that they were legally represented at all material times.
MR DEAKIN: Yes.
CALLINAN J: And bearing in mind that I would have thought that it was a matter of absolute notoriety to anybody playing either rugby union or cricket, major international sports, that there was a international rule fixing body.
MR DEAKIN: Yes.
CALLINAN J: But anyway, I would like you if you can at some stage to consider that question.
MR DEAKIN: Well, your Honour, I suppose it is fair to say that we have not been trying to limit the issues that your Honours will have to grapple with in this case. We have not put in written submissions dealing with the limitation arguments because it opens up a whole new range, but it is a ground of appeal, your Honour, and ‑ ‑ ‑
CALLINAN J: But if the Court of Appeal fell into error there, it seemed to be a very critical matter to the Court of Appeal because they said they would not exercise their discretion in favour of the respondents if they were satisfied that there was a good limitations point, and they said there was not a good limitations point because they were prepared to there and then extended time.
MR DEAKIN: Yes, yes. Well, your Honours, in fairness to my learned friends, what we would ask is indulgence, I suppose, but we would ask that we have liberty to put in some submissions dealing with the limitation point, bearing in mind that it has always been a ground of appeal. We have not done it and this hearing has taken perhaps longer than it ought to have with us on our feet, anyway. If that was a course that would recommend it to your Honours, we would ask for that indulgence, but we could put it in writing and with, obviously, liberty to the ‑ ‑ ‑
CALLINAN J: There would be no doubt that the onus in relation to knowledge or means of knowledge would be upon the respondents.
MR DEAKIN: Yes, yes. Well that is, of course, that we would ask your Honours to do, but perhaps your Honours ought to hear from my learned friend as to other aspects before your Honours come to a view about it.
GLEESON CJ: Yes, but we can let you know at the conclusion of argument.
MR DEAKIN: Yes, thank you, your Honour.
Can I just take your Honours, in finally dealing with the discretion, to what the evidence was as to the nature of this organisation. Our point is that it is wrong to look at it as a global enterprise and a global international organisation anyway, because we are dealing with individual appellants who have a place of residence, very clearly and very specifically. The New Zealand appellant is based specifically and clearly as a corporate resident of New Zealand, and each of the individual appellants all have their place of residence in the country they represent, and the Court of Appeal was simply not justified in saying that the present appellants had no residence at all. They confused the unincorporated body with the individual appellants who are to be treated separately as individuals, each of them having a residence. The evidence as to what the organisation itself was is contained in the affidavit of Mr Maffey and we would just ask that the Court refer to that very briefly. It is in the appeal books commencing at 173 in volume 1, your Honours.
Mr Maffey’s affidavit is an affidavit of a date in June, I think it is 19 June 1992. I do not need to read anything on the first page. Could I invite your Honours to turn over to 174 paragraph 8 and could I just read that briefly to your Honours:
I am informed by Keith Rowlands and verily believe that there is a sub‑committee appointed by the International Rugby Football Union who consider the laws of the game.
And that, perhaps, is a matter that your Honour Justice McHugh raised with me yesterday:
However, as referred to above, amendments to the laws of the game are only approved at the annual meetings of the International Rugby Football Board, where all members are invited to send representatives.
He annexes the minutes of each of those meetings dating back right to 1977 and your Honours see the variety in names of those attending. Taking your Honours down to paragraph 11:
I am informed by J (John) G M Hart and verily believe that for 15 years from 1971 to 1986 he held the position of Honorary Secretary of the International Rugby Football Board.
J G M Hart informs me and I verily believe that during that period the business of the International Rugby Football Board, other than committee meetings and annual meetings was conducted from his home at –
an address in Surrey:
on an entirely voluntary and unpaid basis. Further, I am informed by J G M Hart and verily believe that much of the associated typing and secretarial work was undertaken by his wife, Ann Hart, on a voluntary and unpaid basis.
J G M Hart informs me and I verily believe that during the period that he was Honorary Secretary of the International Rugby Football Board he was employed on a full time basis in the field of steel making, raw materials and shipping. J G M Hart is now retired.
I am informed by J G M Hart and verily believe that during his tenure as the Honorary Secretary, the International Rugby Football Board had no paid employees and no assets. The only income was from contributions by members to the Honorary Secretary’s account to defray expenses –
et cetera, and he annexes the balance sheet for the Board, the last one at the date of his affidavit which was dated from 1985 which shows the very modest expenses, indeed, incurred during that period.
So, your Honours, for it to be said that this is some global enterprise spanning the world, we submit, is just totally against all the evidence in the case. Apart from it being a global enterprise, it is a very modest organisation, indeed, conducted from the home of a secretary who works as a steel maker. And for it to be said that there was some obligation on this body to investigate these matters, to acquire a knowledge of these matters, to do something about it, we submit, is clearly erroneous, with all due to respect to the Court of Appeal. And there was no other evidence as to what its structure was in the years since that time ‑ ‑ ‑
CALLINAN J: What page is that, I am sorry.
MR DEAKIN: The evidence I am just referring to, your Honour?
CALLINAN J: Yes.
MR DEAKIN: Page 174 of the book.
CALLINAN J: It is not a submission you could make now, I would think. I mean, in respect of events occurring now.
MR DEAKIN: No, I think your Honours may or may not have sufficient knowledge to know that the amateur status has disappeared, and that there is now an emphasis on money matters that were certainly not there in 1986 and 1987, which was the relevant period we are dealing with. Your Honours, that is our submissions. We do submit that, given the errors in the judgment of the Court of Appeal, given the fact that there is no cause of action known to the law such as that that is sought to be invoked against us in this case, we do submit that the appropriate order is that the judgment of the Court of Appeal be set aside and the judgment of the trial judge to be restored.
GAUDRON J: And am I correct in thinking that, if one were to come to the view that both the trial judge and the Court of Appeal were wrong, you invite this Court to make the determination?
MR DEAKIN: We do, yes, your Honour, and we do submit this, that at least in relation to the location of the tort it may be preferable for this Court to pronounce on that matter so that all parties know what the position is. If the Court felt, of course, it could not do that and that there might be factual issues that still arose, we understand that, that appears to be the Court of Appeal’s attitude, but if we were to lose this appeal and your Honours, in ordering that the appellants stand trial, for it to be left hanging in the air as to what is the location of the tort when there are very few facts at all that one could imagine touching on that subject that could be adduced at the final hearing, puts all parties, including the plaintiffs in fairness, in some difficulties because no one knows which law is to be applied to determine the substantive issues in the case.
GUMMOW J: Suppose we decided that the Court of Appeal erred in its re‑exercise of discretion. What do we do?
MR DEAKIN: Your Honours would have to exercise the discretion afresh for your Honours.
GUMMOW J: Do we, rather than simply reinstate Justice Grove’s ‑ ‑ ‑
MR DEAKIN: I am sorry, I thought I made that plain. I apologise, your Honour. Our primary submission – in fact it was the last word I said before I sat down – was that the appropriate order is to restore the judgment of the trial judge because ‑ ‑ ‑
GUMMOW J: Suppose we thought that had miscarried too?
MR DEAKIN: If your Honours were of the view that it miscarried, even though the Court of Appeal was wrong in the basis of what it did, then I think I would have to ‑ ‑ ‑
GUMMOW J: We would have to re‑exercise it.
MR DEAKIN: Your Honours would have to re‑exercise but, unless there was a matter of importance in what the trial judge did that your Honours took the view vitiated the exercise of his discretion, then the order that we do ask this Court to make is an order setting aside the judgment of the Court of Appeal and restoring the judgment of the judge at first instance.
GLEESON CJ: We understand that. You have leave to file further written submissions relating to the limitation question within seven days of today’s date and Mr Jackson has leave to file any reply he wishes to make to that in writing within seven days thereafter. He may of course wish to
deal with it orally now and, if he does, that does not preclude him from putting in written submissions.
MR DEAKIN: If your Honour pleases.
GLEESON CJ: Yes, Mr Jackson.
MR JACKSON: Your Honours, may I deal first with what your Honour said at the start of today about the course the matter has taken. What was said reflects on our side of the matter adversely of course. May I first of all say we apologise for that. The second thing I would say, if I may, is that we had no knowledge of our learned friend’s – our learned friend’s statement yesterday was made without particular reference to us. I do not say that critically and I cannot say I have been in the case before this appeal, so I know nothing about the matter personally, but could I say if there is anything we can say on our side to ameliorate the seriousness of the situation, I need to speak to my solicitor about it and perhaps if we could advise the Court in a very short time after the case is over.
GLEESON CJ: As you please.
MR JACKSON: Your Honours, the second thing I would seek to say in relation to the limitation point, the point your Honour Justice Callinan has raised, that is an issue of course that was not raised in the way in which your Honour has raised it in the special leave application, so we would prefer, I think, to put our submissions on the issue in writing and it may be that we would submit that it is something in relation to which special leave would be needed and we would seek to oppose that as well as making some submissions in response to it.
Your Honours, could I move then to the heart of the matter and could I commence by saying this, that we and the appellants in some respects seem to be talking about entirely different cases. What I mean by that is that the appellants’ argument seems to have left out of account in large measure the fact that evidence was adduced at the hearing before Justice Grove and that that evidence demonstrated, first of all, that the Australian matches at relevant levels were played in accordance with the laws and that the Australian bodies treated themselves as bound by them and the IRFB members expected that they would.
The second thing is that the IRFB members had an ongoing concern with the operation of the laws of the game in relation to safety. Indeed, it had a committee which was monitoring their efficacy in that regard, and the pleading, of course, to which some reference has been made did contain, as your Honours have seen, the allegation which one sees at page 26 in the Hyde Case, for example, as particular (d) and that is failing to do the various things earlier referred to where the members of the Board knew or ought to have known by reason of the available evidence of the particular risks and, your Honours, that is a matter to which some evidence was directed and that has been mentioned in passing. I will take your Honours to a little more of that a little later.
Your Honours, what we would submit is that there was ample evidence to show that whatever test might be applied at that stage, that the service should not be set aside and the matter should go to trial. Could I pause to say one other introductory thing, your Honours, and that is that your Honours will see in volume 3 at page 728 at the bottom of the page and the top of page 729, that is the last line on page 728, that their Honours in the Court of Appeal said:
As we understand it, all parties have run their cases to date upon the basis that establishing breach would be a matter for trial if the proceedings advance.
GLEESON CJ: Before you pass from page 25, Mr Jackson, I would like to ask you about paragraph 15 of the statement of claim of which the matter you were just referring us to was a particular.
MR JACKSON: Yes, your Honour.
GLEESON CJ: It is only a small question of expression, but that uses the expression “the persons responsible for the conduct of the Council”. Does that expression mean anything different from “the members of the Council”?
MR JACKSON: Your Honour, paragraph 9A at the bottom of page 24 defines the term “the persons who were responsible for the conduct of the Council of the IRFB” and ‑ ‑ ‑
GLEESON CJ: Well, I will ask the same question in relation to paragraph 9A. Is there a difference between the concept of “persons responsible for the conduct of the Council” and “members of the Council”?
MR JACKSON: Well, not for relevant purposes.
GLEESON CJ: It seems an extraordinarily oblique way of referring to the members of the Council.
HAYNE J: Save this, you have a corporate body wandering across the stage here, have you not? You have the New Zealand Rugby Football Union.
MR JACKSON: Well, your Honour, there is the one corporate body, yes, your Honour, but that is the ‑ ‑ ‑
HAYNE J: That is included amongst those who are the persons “responsible for the conduct of”.
MR JACKSON: Yes. Your Honour, it might, perhaps, at trial, cause some difficulty. But the position, in our submission, is simply that what you do have is an allegation in paragraph 15 that those persons, and your Honours will see the alternative allegation in paragraph 9A(i) and (ii), so it is said either the individuals or the individuals and the Australian Rugby Union which, your Honours, was an incorporated body at relevant times ‑ ‑ ‑
GLEESON CJ: Is the allegation in paragraph 9A an allegation of fact or an allegation of law? It says “the persons who were responsible for the conduct of the Council” in certain respects, were so and so.
MR JACKSON: Well, your Honour, it is an allegation of fact, I would have thought. They are saying that the persons who were responsible were these persons.
GLEESON CJ: It is not a reference to legal responsibility.
MR JACKSON: Well, your Honour, it carries with it both aspects. It depends on the context in which one is looking for legal responsibility. Illegal responsibility would be a conclusion, perhaps, from the factual allegation that is involved. Now, there may be, for some purposes, an allegation of law involved if one were talking about the situation of what obligation there was as between, for example, one of the members of the member bodies and the persons who constituted the Council of it. But in the way in which it is put there, it is prima facie, we would submit, an allegation of fact.
GLEESON CJ: So it means, for example, to take one of the deceased people, Dr Craven was responsible for the conduct of the Council in not changing the laws.
MR JACKSON: He was one of the people, yes.
GLEESON CJ: What is the nature of the responsibility there being referred to?
MR JACKSON: Well, the responsibility, your Honour, is to take reasonable care in the exercise and the functions of that office to prevent unnecessary risk of injury.
GLEESON CJ: Responsible to whom?
MR JACKSON: Responsible, your Honours, to the people who might be engaged in playing Rugby, in circumstances where those rules would be applied, and would be known to be applied, your Honour, known to be likely to be applied. Your Honour, I suspect in saying that now, that I am really doing no more than trying to restate the Naper principle.
GLEESON CJ: So Dr Craven, when he accepted membership of this body, undertook a responsibility to anybody in the world who might play this game according to these rules that extended to not changing, as well as to changing the rules, the responsibility was to do what?
MR JACKSON: The responsibility was to consider whether in the light of circumstances which either were known or ought to be known to them – and your Honours will bear in mind these are not people who come along from various outposts and have a meeting every so often. They are people who are appointed to be the representatives of the bodies that conduct the game in the various countries. They are not coming along as people who have no knowledge of the game. They have to be either present members or former members of the executive body of the members. So they come along, no doubt they all bring along their experience to the meetings, they bring along their knowledge. They are the people who make the rules and they have to exercise reasonable care in deciding whether the circumstances of which they are aware, or in some cases ought to be aware, merit the alteration in rules.
McHUGH J: But the case seems to be a case against them as members of a deliberative assembly. I could understand a case in which it was indicated that they controlled the sport, ran it in effect, imposed those rules and therefore they owed duties of care by reason of their control right down through the various layers of membership, but that does not seem to be the case that you make.
MR JACKSON: I do not make all of that, your Honour. Your Honour put to me all the functions that might be carried out by a body that had control but it would be a perfectly intelligible situation to have all those features divided up and conducted by a number of different bodies. For example, you could have the organisation in various countries conducted by various local authorities, maybe at various regional levels or a national body. Then you have another body which has the function of making the rules which are to be applied when those games are conducted. To that extent there is the relevant control.
That is what really I am saying. I am not saying it is just a legislative body but it is a body that controls how the game is played throughout the world and the various unions that are its members are the ones who have given to that body the power to make those rules. I will come to this in a moment, that one sees that it was appreciated that one of the purposes of the rules and one of the purposes of considering change was to ensure that there were not injuries that could properly be avoided.
McHUGH J: But is there any evidence here to show the linkage from top to bottom? For instance, in the rugby league field the player used to sign an application for membership and be bound by the rules of the club which incorporated the rules of the New South Wales Rugby League which incorporated the constitution of the ARL, et cetera, et cetera, so that there was this connection right through.
MR JACKSON: Perhaps, your Honours, if I come to the factual aspects first might be simpler, I think. What I am seeking to say is that there was an arguable case – this is the point to which I am going to direct the submissions – for the existence of the relevant duty. If I might at the moment leave aside what the precise test might be, whether it be a good arguable case or perhaps a different but maybe better rendition of that by saying an arguably good case, but that might be ‑ ‑ ‑
GLEESON CJ: What do you say was the duty?
MR JACKSON: The duty was to take reasonable care in monitoring the operation of the rules to ensure that the risk of unnecessary harm was avoided.
GLEESON CJ: Well now, I think I understand the concept of unnecessary harm in the employer/employee situation. But what is the content of the concept of unnecessary harm in relation to a body contact sport?
MR JACKSON: Well, your Honour, could I put it this way. One could describe it as being a duty to reduce or avoid risks which are serious and unnecessary, having regard to the nature of the sport. One could describe it as a duty to reduce risk to an acceptable level, having regard to the nature of the sport and, your Honours, I will come to it in a moment, if I may. But this Court in Rootes v Shelton in 1967 had no difficulty in applying the ordinary tests of negligence to a sport.
GLEESON CJ: Now, are not these people the people who decide what the nature of the sport will be?
MR JACKSON: Well, your Honour, in one sense, yes. But that ‑ ‑ ‑
GLEESON CJ: Now, if part of their function is to decide the nature of the sport and the level of risk to which they will subject players as part of the nature of the sport, have they not, by not changing the rules, determined the nature of the sport?
MR JACKSON: No, your Honour. I did not, your Honour, with respect, assent fully to the first part of what your Honour was putting to me. What I was going to say was, that they determine the rules that are to be applied from time to time when carrying on the sport. But, your Honours, if I could put it this way: in a lot of these things, the game tends to be larger than the player. I think one has heard expressions of that kind used in the past.
GLEESON CJ: But there is no such thing as the sort of - the inherent nature of rugby union against which you contest what is, or is not, an unnecessary risk of harm.
MR JACKSON: Well, your Honour, there is no doubt there is – your Honour, with respect, I do not assent to that proposition, if I do so, because one could say, broadly speaking, that Australian Rules and rugby union, whatever might be the changes in rules about the scrums or a number of other things, were not the same game. One could say the same about soccer and rugby union. And there would no doubt be a question of definition of the extent to which changes in the rules in relation to rugby union would remove it from the general concept of rugby union. People would say, “They are not playing that game any more, they are playing rugby league, or they are playing Irish”, whatever game the Irish play. So, your Honour, the rules operate to conduct something that, broadly speaking, could be defined and, your Honour, defined in various ways.
GLEESON CJ: But you could reduce the risk of harm to players of rugby union by eliminating tackling and making it touch football.
MR JACKSON: Well, you could, your Honour. Yes.
GLEESON CJ: Well now, how do you decide whether or not the risk from being tackled is necessary or unnecessary.
MR JACKSON: Your Honour, one could say, I suppose, that one of the aspects that went to make up the game of rugby union was tackling. But, your Honour, one sees – and I will take your Honour to it in just a moment – that that very question of what the rules should be about tackling is something that has been considered from a safety point of view by the appellants.
So, your Honour, might I move on, perhaps, to the question of the existence of the duty and to the factual aspects of it first. Your Honours, could I start with the proposition that there was a committee of the Board called the Laws Committee, and if I could just take your Honours for a moment in volume 1 to page 113. Your Honours will see this is a letter from the Executive Director of the Australian Rugby – the first defendant – I am sorry, your Honours, the second defendant – to the secretary. It is “September 88”, that is a year after one of the accidents, two years after another one. But, your Honours, the matters to which I am about to come demonstrate that there had been ongoing interest in safety for years.
You will see about line 27 that he refers to the Laws Committee and if one looks at the paragraph beforehand the Laws Committee relates to the International Rugby Football Board. Now, could I just pause there to say – I will come back to that in a moment – if one goes to volume 2 at page 435 you will see that pursuant to bye-law 15 it says:
The board shall have full powers to appoint Committees to consider and report on matters which may be referred to them by the Board.
Now, the Laws Committee had power to – it was one of those committees – it had power to recommend changes in the laws of the game. You will see that from bye-law 12 on the preceding page. Your Honours will see, if one looks at the first paragraph of bye-law 12, that it refers to two groups of people who may propose changes. They are member Unions or a committee of the Board. Now, that was a fact, of course, namely, that the committee could recommend changes and it was a fact which the primary judge got wrong. Your Honours will see reference at page 649, about line 50 in volume 3, where he referred to the fact that it was only member Unions who could change the bye-laws, but it was not the case.
McHUGH J: But, one real difficulty I have with your case is that you keep talking about committees but these are individuals. Can you put your case any higher than that an individual member failed in his or her duty – and I do not think there are any females – in not proposing an alteration, and, if you do, that seems to me to create enormous problems of proof.
MR JACKSON: We would, I suppose, at the lowest level perhaps put it that way, but you might have some difficulty in terms of ultimate causation but could I just say that what we would say, and I will come to this a little later, is that in the circumstances the members of the Board owed the relevant duty to alter the laws.
McHUGH J: But the use of language implies a joint and collective responsibility, that everybody is responsible for everybody else.
MR JACKSON: No, I am sorry, your Honour. Well, your Honour, that is, if I may say so with respect, the usual position in relation to the committee of an unincorporated body. What I mean by that, your Honour – I can see your Honour Justice Hayne expresses some ‑ ‑ ‑
HAYNE J: I am just waiting for the next line, Mr Jackson.
MR JACKSON: Yes. Well, your Honour, it is to come. It is to come. What I am seeking to say is this: if one sues the committee of an unincorporated body, for example, then in the ordinary course of events the members of that will have – each of them will have a liability. There may be separate defences, of course. One sees it most obviously in the case of defamation where some members of a body which has sent, say, a defamatory communication, may have been actuated by malice, some may not; some will have the defence; some will not ‑ qualified privilege defence; some will not.
McHUGH J: Yes, but they must have each authorised the initial publication. They are not responsible because some other member of the committee puts out a publication, are they, unless one can impute agency?
MR JACKSON: Well, assume a publication put out by the secretary and the secretary having authority to put out communications of that kind, so the might be liable for the defamation subject to defences, but, your Honour, may I perhaps come back. What I was seeking to say in answer to the first part of your Honour’s question was that prima facie the duty would be on the members of the committee to change the laws.
GAUDRON J: Well, could it be any higher than to exercise their powers and functions under the rules?
MR JACKSON: Well, your Honour, that really would be, with respect – I am sorry, what I was doing was particularising the more general obligation your Honour was putting. Now, your Honour, we do not say there was an obligation to do other than to exercise reasonable care in that regard and it may be that if you have a situation where half the members endeavoured to enact or get enacted the relevant resolution but it was not able to be enacted because the majority that was requisite could not be obtained then those members who had endeavoured to do so would be able to say, “Well, we have acted. We have done all that we needed to do. All we could reasonably be expected to do.” The other members may well be liable, but, your Honours, the ‑ ‑ ‑
McHUGH J: So the liability is - the breach of duty is for failing to vote at a particular meeting, is it, or failing to forward the resolution by 1 January?
MR JACKSON: Well, your Honour asked me a question before I came to the next thing I was about to say, which was that meetings could be specially convened to change the laws and that that is so appears from bye‑law 11 and in a piece of evidence I will come to in a moment. One of the reasons why they might meet was for safety reasons, to deal with the rules in relation to questions of safety. You see bye‑law 11 at page 434 says that there can be “a Meeting specially convened for the purpose” of changing, amongst other things, “the Laws of the Game”.
GLEESON CJ: There is one aspect of the facts I have not quite understood yet, Mr Jackson. Were these individuals merely people who were appointed to represent a member Union at an annual meeting of the Board or do they have standing capacity of being representatives? In other words, were they simply delegates to a meeting or were they people who in between meetings had responsibilities of the kind that you are talking about?
MR JACKSON: Well, your Honour, the latter, your Honour. One can see that adoption of responsibility from a document to which I will come in a moment.
GLEESON CJ: It perhaps depends on those bye-laws that we were referred to yesterday on page 682, and I think we were told that there was some ambiguity in this term “Board”. Perhaps this is an aspect of that ambiguity.
MR JACKSON: Your Honour, there is no doubt that there is some degree of ambiguity and the document I had your Honours at, at page 435, is the fuller version.
GLEESON CJ: Yes, I am looking at paragraph 6 on page 684. Member Unions are “entitled to send two Representatives” to all meetings.
MR JACKSON: Yes. Well, now, in fact, your Honour, they are representatives of the Unions.
GLEESON CJ: Yes, but that looks as though these are delegates.
MR JACKSON: Yes. Yes, your Honour, however, in one sense they are delegates, but they seem to have some independent power, some ‑ ‑ ‑
GLEESON CJ: But, to get back to Dr Craven, presumably whether or not Dr Craven was the South African delegate to a meeting in 1986 would depend partly on whether he had other commitments that might prevent him attending the meeting, so who turned out to be the South African representative or representatives at a particular meeting would depend upon who was nominated by the South African Board consistently with their own other personal commitments.
MR JACKSON: Well, it would, but your Honour if one looks at the meetings that were held over the, say, 10 years, preceding 1986 – and I will give your Honours to where that is – membership seemed to have the characteristics that once were attributed to membership of the Australian Cricket Team. It was harder to get out of than in. Your Honours, you will see that at page 177 to 186 in volume 1, and if I could ‑ ‑ ‑
GLEESON CJ: That is a good example, Dr Craven could not attend the meeting because he was in hospital or he had been to hospital.
MR JACKSON: Yes.
GLEESON CJ: Now, did he have responsibilities of the kind that you are talking about, notwithstanding that he missed that meeting.
MR JACKSON: Well, if he was not one of the delegates, then at that point, no.
McHUGH J: But would he not be required to vote in accordance with the instruction of his local board, that is to say, Dr Craven would put forward the views of the South African Rugby Union people and Dr Vanderfield would put forward the views of the Australians. They would be mouthpieces, would they not, rather than have independent discretions?
MR JACKSON: Well, they do not seem - your Honour, could I say two things about that. The first is they do not seem to have acted that way, and I will come to that in a moment. The second, thing is that the adoption of that view purely as a matter of construction of the bye-laws is militated against, if I could use that expression, by the terms of the bye-law to which I referred earlier, bye-law 12, which gave to members of the committees a power different and different from and independent to, an independent one, which was not the same as the power given to the member Unions. Both the Unions and the members of committees could propose alternations to the rule, and from that one might expect there to be situations where the members of the committee, the laws committee which was concerned with safety matters, would of their own motion propose alterations. They did not just act as mouthpieces. Your Honours I was ‑ ‑ ‑
McHUGH J: Maybe the evidence is to the contrary, but one would think that these rules were intended to give effect to Bourke’s theory of parliamentary representation, that you were the representative of your constituents that sent you along to vote.
MR JACKSON: Your Honour, that is, if I may say so, was a simplistic view then and a simplistic one now, because what one sees, of course, is that, in relation to some issues, one could imagine there would be degrees of regionalism. In relation to other issues, there would not be. I mean, for example, questions of what was or what was not amateurism and what payments might or might not be allowed. Whether Australians could go and play in Italy, for example, in their off season, and get some remuneration for it, in excess of their actual expenses – things of that kind. It might be matters that would be attractive, others would not. Issues like safety tend to be universal.
Your Honours, I was going to say, if one looks at pages 177 to 184, one can see that in the 1977 meeting of the persons who are named as first and eighth defendants in this case – you have Mr McKibbin, Mr Dawson, Dr Vanderfield, Mr Blazey. The next year you have Messrs Stuart, McKibbin, Dawson, Vanderfield, Professor Eloff. Your Honours, I do not want to take up time by going through these one by one. Could we give your Honours a list showing the people who are parties to the proceedings who were at each of the meetings in the 1977 to 1986 time? Your Honours will see them in the various pages that follow: 179, 180, 181, and so on. I am happy to do it now if your Honours want me to but I can give your Honours the list that sets them out.
HAYNE J: What legal significance, if any, do the bye-laws have and whence derives their legal consequence or significance?
MR JACKSON: Well, your Honour, I do not want to avoid answering your Honour’s question but it appears to be a matter of voluntary submission, if I can put it that way, of the bodies which constitute rugby union in the countries that are covered by it, to voluntary submissions by way of agreement to play rugby according to the laws from time to time. Is your Honour speaking about the bye-laws or the laws of the game, sorry?
HAYNE J: The bye-laws, not the laws of the game. Bye-laws seemed to be something that drew whatever significance they have from voluntary arrangements made by member Unions.
MR JACKSON: Yes. Bearing in mind, your Honour, that one would think that in the countries that are involved, that it is the way in which international competition is likely to be arranged by a body that combines representatives of various nations.
HAYNE J: But giving rise to some contractual arrangement between some legal persons? Or is it simply a set of statements of intent binding in honour only?
MR JACKSON: Probably the latter, your Honour, probably that. There may be, of course, many associated legal difficulties. For example, various forms of misrepresentation by describing oneself as playing rugby if it was not tradition, things of that kind, of course.
HAYNE J: Yes.
MR JACKSON: But probably an agreement binding in honour only but at the same time having some legal consequences. For example, if a contract were entered into between the Board, as it were, and someone who was an employee of the Board, one would expect that person to be able to sue the various individuals who form part of the Board, or perhaps the individuals plus the member organisations, perhaps the committee.
HAYNE J: Does it then follow that article 5 of these bye‑laws at 432 that:
The laws of the game…..shall be binding and uniformly observed in all matches except that –
is something binding in honour?
MR JACKSON: Yes, your Honour.
HAYNE J: What are the “matches” there referred to; international only?
MR JACKSON: If I could put it negatively first, it cannot be that because of the exceptions in effect. The exceptions make it clear that the laws of the game are to bind and one might think all games, binding all games, conducted by or pursuant to the various bodies which are under the command of, as it were, the various bodies which are members of the Board.
HAYNE J: But is it a mischaracterisation of the result of these arrangements that this group of people who meet together bound in honour only would wish that the laws of the game be applied elsewhere in the world but have no power to command that that shall be so beyond a moral suasion that would follow from, “Well, if you don’t follow it, you’re out of our voluntary group”?
MR JACKSON: Yes, your Honour, and the legal consequences in terms of restriction upon ability to describe oneself as playing rugby. That is probably so, your Honour, yes.
GLEESON CJ: But if the Australian and New Zealand unions, for example, made a contract with a television company to produce an annual spectacle, provided they did not call it the Bledisloe Cup or represent that it was being played under the auspices of the IRFB, there is nothing anyone could do to prevent them doing that and modifying their rules perhaps to conform to the necessities of television in some way.
HAYNE J: As, for example, a seven-a-side game.
MR JACKSON: Your Honour, no doubt there would be a question of degree of course. It may be a question that you have a section 52 case in some respects perhaps or the equivalent under the….Fair Trading Acts of the State, but in the end it would be possible to do so, but that was not the case.
I was referring to the fact that the meetings did not have to be once a year and there was some evidence which your Honours will see at page 157 in volume 1 in the evidence of Mr Wilkinson that in effect what was said by the IRFB was in fact followed in Australia. Your Honours will see he was the secretary of the Sydney Rugby Union in paragraph 1, which was an affiliate of the New South Wales Rugby Union which was a member of the Australian Rugby Football Union. He said in paragraph 4:
The rules or laws of the game of rugby are as set down by the International Rugby Board (IRB) and which are then communicated to the ARFU, which in turn passes down such laws –
and so on. Paragraph 5:
The SRU is unable to vary the rules of the game as notified by the NSWRU, as such variation can only come from the IRB, otherwise the SRU would not be conducting the game of rugby.
GLEESON CJ: What was the date of this affidavit?
MR JACKSON: 12 October 1988, your Honour.
GLEESON CJ: How long was that before an application was made to join these present appellants as defendants?
MR JACKSON: The chronology attached to our – yes, I am sorry. The application was made to join these defendants in early 1995. I will give your Honour the exact date a little later, if I may, but before that there had been an attempt to join a representative defendant on behalf of them and that attempt was, of course, itself struck out.
McHUGH J: I thought it was back in – March 1994 there was – Hyde filed a notice of motion for leave to amend and to join the present appellants.
MR JACKSON: Could I give your Honour the exact dates of that because it is referred to in an affidavit of Mr Ryan. He sets out the detail of it and the ‑ ‑ ‑
GLEESON CJ: Well, in so far as it may be relevant to the Limitation Act point and to any discretion point, we know that in October 1988 the appellants were being informed of the facts referred to on page 157.
MR JACKSON: It was 31 March 1994 that we gave a notice of motion for leave to amend and to join and extend the time against the present respondents and, your Honour, perhaps I could your Honour the exact date without ‑ ‑ ‑
McHUGH J: The bottom line of all this is that you are alleging that each of these Board members of the IRF owed a duty of care to every person who played rugby union under the auspices of one of these member Unions anywhere in the world, in Rwanda, in Auckland, in Sydney, wherever it was.
MR JACKSON: Well, your Honour, I do not know that I need to go beyond the people – beyond the countries that were members of the Board, that were part of the Board and undertook to be bound by its rules.
McHUGH J: But that means that they owed a duty of care to perhaps hundreds of thousands of people.
MR JACKSON: Well, your Honour, that is not surprising. That was their job.
GLEESON CJ: Including a duty to tell them to wear protective head gear?
MR JACKSON: Well, your Honour, no, not particularly. In some cases, your Honour, if the - your Honour, could I in dealing with that question say this: your Honour, it would depend and it depends on whether the information that they had made it reasonable for them to make that something that was binding on everyone.
McHUGH J: Well, for example, they knew that tackling causes serious injuries, sometimes quadriplegia, paraplegia. Do they have a continuing duty to investigate whether they should do something about tackling in rugby union?
MR JACKSON: Yes, your Honour, they do and that is what they did and, your Honour, can I come to that now because I want to go to page 110.
McHUGH J: It is one thing for them to do it. It is another thing to say whether they have a duty of care, which, if they breach it, they are liable to any individual who suffers damage, irrespective of where that person is in the world.
MR JACKSON: Well, your Honour, of course, that is so, but if one looks at a situation where you have got a body that does, in fact, assume the function of making the rules, knowing they will be followed by people throughout the world and in circumstances where matches will be conducted pursuant to those rules and if it becomes apparent that the rules are defective in terms of having the potential to cause serious injury to people acting under them, then, in our submission, there is a duty.
McHUGH J: Yes, but you keep referring to a body. It is these individuals, each of these individuals - Dr Craven. I mean, in your argument, Dr Craven owes a duty of care to any person playing rugby union in the world and if that person is injured as a result of a failure to change the scrummaging rules then he is liable in damage. It is a very large proposition.
MR JACKSON: It is one that can operate throughout the world, I accept that, but, the largeness of it, we would submit - if the rules were – the rules could be made in Australia. There is no particular reason why they had to be in London or anywhere to do it. The might be – representatives of all the countries involved, they go there, they know what they are doing and if one looks at page 110, line 30, and sees what they said – this is in 1988:
In the past decade or more the Board has taken the initiative in encouraging Unions to take recommended measures to ensure that the game was both safe and enjoyable to play. In that time many Law changes have been made in the interests of safety.
GLEESON CJ: Is this one of these areas of the law where policy judgments enter into a decision as to whether there is a duty of care?
MR JACKSON: It depends what one means by policy decisions in the ‑ ‑ ‑
GLEESON CJ: Well, in any sense of the term?
MR JACKSON: Well, in our submission, the answer is really “no”.
GLEESON CJ: If the answer was “yes” would it be a relevant consideration that nobody in his right mind would undertake a responsibility of this kind?
MR JACKSON: Well, what you have is people who are going there as representatives of other bodies, in one sense. So, one would expect that they go there in circumstances where they would expect the other bodies to be people responsible – maybe not legally, but responsible for their activities and ‑ ‑ ‑
McHUGH J: But not even Lloyds of London would insure any of these individuals against this risk.
MR JACKSON: At that stage they may well have, your Honour, with respect, but ‑ ‑ ‑
CALLINAN J: Mr Jackson, you use the word “influence” I think, “to influence”- - -
MR JACKSON: I am sorry, I did not hear what your Honour said.
CALLINAN J: I think you have read out something to the effect that these people could influence changes in the rules.
MR JACKSON: Yes, I have not completed what I was going to read, your Honour, yes.
CALLINAN J: Does that not make the point, though, if one looks particularly at Crimmins where there was at least a statutory framework and there was a particular relationship, there was proximity - this is an entirely different case from Crimmins, is it not? I mean, Crimmins really points up the difference, does it not?
MR JACKSON: In our submission, this is really, in a sense – although I appreciate that there are other instances of it but it is not a case that really is particularly novel in concept because what you have is people who knowing that other people will be playing in games where what they do – what they say is to be obeyed and where one of the purposes of having the rules is safety, one would expect, they do not take reason.
CALLINAN J: Not only safety, Mr Jackson. Probably the prime consideration is that they are all playing, so that they can play one another, that they are all familiar with the rules, and there is one set of rules, so that there is, in fact, one game. That would, I think, be the principle.
MR JACKSON: Your Honour, I do not doubt that is a factor. And, your Honour, I am not seeking, if I may say so with respect, to say that they have an absolute liability.
McHUGH J: But what they do have, on your theory, is an indeterminate liability in respect of an indeterminate number of people for an indeterminate period of time. Why are they any different from the person who makes a map of a particular part of the ocean and fails to put a reef there, and a ship sinks? No one ever suggests that the map maker is liable for the injuries sustained by people who are injured as a result of the ship sinking. What is the difference in this case?
MR JACKSON: Well, your Honour, with respect, I do not know about that. If you have a person making maritime charts knowing they are going to be used, and knowing they are up to date and not putting out any correction on them in circumstances where vessels are going to use them.
CALLINAN J: Well, we will take another example. Take a voluntary organisation of travel agents, an international organisation of travel agents who set out to try to influence airlines to have safe practices but only to influence them. Does that mean that if they do not make rules, then anybody who is injured as a result of an omission to comply with the rule that they should have made, can sue them?
MR JACKSON: No, your Honour. What it means is that – your Honour is talking about the travel agents, I take it?
CALLINAN J: Yes.
MR JACKSON: Your Honour, in those circumstances they may well have a duty to make the representations and the duty would be performed by doing so.
CALLINAN J: Even if it is a voluntary organisation of travel agents?
MR JACKSON: Well, it may be, your Honour. It depends what its function is. And talking about function, could I just say, if one goes to the second paragraph of the letter at page 110, the Board’s perception of its function is there set out. It says:
It is the responsibility of the Board to monitor the safety aspects of the game and endeavour to identify deficiencies in management, refereeing, coaching and the Laws of the Game.
And if I could just pause there, your Honours, to say this. If you could back to the paragraph immediately above it, it says:
The comparative results –
and it is speaking, as your Honours will see from the second sentence of the first paragraph, about:
Law changes have been made in the interests of safety.
It goes on to say:
The comparative results have exceeded expectations and the incidence of serious injury has been reduced.
Now, your Honours ‑ ‑ ‑
GLEESON CJ: That word “responsibility”, as has been noted earlier in relation to the corresponding word in the pleading, involves a large ambiguity. It is one thing to say, if you had asked Dr Craven whether he thought that he had any kind of responsibility to concern himself with the safety of the game of rugby, he would have answered, “Yes, I do”. It is another thing to say, if you had asked him, “Do you think you may be legally responsible for any damage suffered by any player of rugby union anywhere in the world as a result of any shortcoming in the rules?”, it is highly likely that you would have got a different response – not just because he was not a lawyer. In fact, it may be that it would never occur to anybody but a lawyer that you would have got a responsibility of that second kind.
MR JACKSON: Well, your Honour, can I say two things about that, your Honour, and the first is that if there is some ambiguity in the term “responsibility”, then that indicates, in our submission, that the action is one which should go on to trial, a matter to be decided at the trial, that is the first thing. The second thing is, your Honours, that if one had asked Dr Craven or any of the persons notable in rugby union, such as Dr Vanderfield, a question of that kind, one might have thought that the mature answer would be, “Well, I would not be liable if I took all reasonable care in the circumstances in my dealing with the rules”. Your Honours, that is in our submission what ‑ ‑ ‑
GLEESON CJ: Reasonable care to do what?
MR JACKSON: To ascertain - your Honour, perhaps one goes too far in saying that – but reasonable care to ensure that the rules of the game or the laws of the game did not provide for circumstances where there were risks, of serious injury at least, unnecessarily taken.
GLEESON CJ: Well, now come back to the matter of protective clothing, headwear and otherwise. What is the measure of their responsibility in relation to deciding whether or not, for example, they should compel all players to wear headgear to reduce the risk of concussion?
MR JACKSON: Well, your Honour, the measure of their responsibility would be to ascertain the overtime or to monitor, as it were, the injuries that might be caused by concussion to endeavour to find out whether headgear would or would not be the better thing and whether making it mandatory, and if so, what type, would be appropriate thing to do. Now, your Honour, it does not mean it all has to be done at once or at a particular time, but it ‑ ‑ ‑
McHUGH J: Well, take cauliflower ears, now why is there not some duty on the part of the Board to insist on proper headgear to eliminate cauliflower ears?
MR JACKSON: Your Honour, if I were making the rule, I would say it was mandatory to do it, but leaving personal view aside about it, what might be said, your Honour, was that if you have, in scrums, people going into them wearing the headgear, that that may be productive of some other damage to other people. Your Honour, there may be other factors of that kind, your Honour, and I am not suggesting it would not be an appropriate thing to do. Maybe it is, I do not know, but it is just a question of what is reasonable, really. Now, your Honour, one is hardly likely to play any form of contact sport without ending up with some form of minor scarring over time, but it is a question of degree, I expect.
Your Honours, I was dealing with what the Board said about itself at page 110, said what it was doing, and the first paragraph was:
many law changes have been made in the interests of safety.
It said in the next sentence that:
The comparative results have exceeded expectations –
and the results are obviously that –
the incidence of serious injury has been reduced.
I have referred your Honours already to the next sentence, about line 39, and then following on that sentence, the Board says:
In reviewing various reports and submissions at its last meeting, the Board considered that there were a number of areas of concern being identified and which require greater attention, as follow –
and you will see:
3) Scrummaging –
and one notes also 2) and 4):
2) Tackling
4) Concussion –
which have been referred to in the course of discussion. Your Honours, if one goes then to page 111, you see a memorandum to member Unions on safety matters and then it deals with the four topics to which reference has already been made, that is the selection of players, tackling, scrummaging and concussion, and you will see at the bottom of page 111, under Scrummaging, they say:
The incidence of serious scrum injury has been decreasing –
this is 1988 –
and the Board is confident that if the requirements of Law 20 are properly met, safe and efficient scrummaging should result.
Then, at the top of the next page observe that:
It is of utmost importance to reduce the impact force at the formation and setting of scrums and to observe –
that method that is there set out. Your Honours, if one goes to page 113, which is the document that I mentioned in passing earlier, the Laws Committee is referred to at line 25 and your Honours will see that the Laws Committee, in fact, was active. It had “reviewed and considered a number of submissions from Member Unions”. It does not actually sound like a pure delegate, your Honour, obeying the dictates of the unions:
and on the recommendation of the Committee, the Board adopted some changes in the interests of safety, for consistency –
and so on. “Those adopted include”, and your Honours will see (a) and (b) particularly:
Further requirements in the formation of a scrummage in order to minimise the force of impact.
and then:
(b): While a scrummage is in progress, a minimum of five players shall remain bound in the scrummage until it ends.
If one goes to the bottom of the page:
These changes shall be implemented as at the 1st September, 1988 and following the end of the Southern Hemisphere playing season.
Then your Honours will see at the top of the next page:
The Board has decided that no further changes to Laws (other than in the interests of safety) will be made until after the Rugby World Cup in 1991.
Now, can I just pause there, your Honours, for a moment, to say that the document that is at page 110 is, of course, a document that one of the appellants has signed on behalf of the Board, and the document at pages 111 and 112 also bears his name. Now, your Honours will then see, if I could go to page 115, the alterations to the laws, and then at about line 10, there is again the notation that:
there will be no further changes…..other than matters related to safety…..until after the next Rugby World Cup.
Your Honours will see then, if one goes over to page 119, that changes in Law 20 were made. There was something said in, I think, Justice Groves’ reasons for judgment and also my learned friend’s submissions, saying the laws have been around forever, since the time someone first picked up the ball and ran with it. But you will see, if you look at about line 26 on page 119, that there is a reference to there being earlier changes in the scrummage laws, again in the interests of safety. Could I just pause to say, your Honours, that at line 9 on page 119, the reason for the change is expressed as being:
To minimise the force of impact on engagement of the front rows, which has been identified as the point of most serious injury…..in recent years. This is considered to be a vital safety measure.
McHUGH J: But, Mr Jackson, to go back to a question the Chief Justice asked earlier, having regard to the nature of the game, how do you judge what is an appropriate standard? Supposing, for example, the Board took the view that the flying wedge, which is something outlawed now in rugby union, adds to the spectacle of the game or that crash tackling does, why should the Board be regarded as negligent if they permit those practices as part of the game?
MR JACKSON: Well, your Honour, could I say this in response to that: your Honour, they sometimes may not be negligent and one is not suggesting that they are insurers or that they have an absolute liability. What they have to look at is – and this in the end is a question of ultimate fact I suppose – you have to look, first of all, at the likely danger. Is there a likely danger and how serious is it. Well, in the present case there is no question about the likely seriousness of it. You have got young people who are likely to end up in a crippled state for the rest of their lives.
Your Honours, the example that one sometimes use in getting more damages or holding high damages awards in cases like this is to say to the court, “Well, when the court adjourns, the members of the court get out of their chairs, the injured person cannot.” And, your Honours ‑ ‑ ‑
GLEESON CJ: But, Mr Jackson, there are many parents who will not let their children play this game at all.
MR JACKSON: Yes.
GLEESON CJ: From their point of view these people are running a dangerous game. Those people might well take the view that there is no way you can play this game without unnecessary risk.
MR JACKSON: Well, your Honour, it is a question of, I suppose, risk of what? What I was going to say was that there are a number of features to be taken into account. One is the fact that it is a game which does involve a contact of bodies and the possibility of injury even without contact. People slip in muddy ground, fall over, twist ankles, break legs and so on. Your Honours, one looks to see, for example, the nature of the injury that may be caused, the circumstances in which may be caused, the function of the part of the game that gives rise to the potential injury.
If one looks at the scrums, all they are doing is to resolve possession, in a sense, in the game and in some cases to be used to push the ball over the line. One looks at the ease of reducing the risk and to matters of that kind. Now, your Honour, if one takes the view that there can be no risk – I am sorry, your Honour, I am putting that badly. All I am saying about it, your Honours, is that it just depends on the particular circumstances and what is being looked at.
McHUGH J: For instance, why do you have to have a scrum? Why not have a line out, not only when the ball is kicked out, but for infield play as well? After all, if the ball goes out in rugby league you have a scrum; in rugby union you have line out. Why cannot you have line outs instead of scrums? On your view scrums are dangerous.
MR JACKSON: Well, your Honour, they are potentially dangerous, but so, your Honour, one view would be that one way is to ban them and have some other means. Another view might be that because there are fewer people in the scrum in rugby league than in rugby union that in those you can have more scrums. Maybe you say you have reduced the incidence by having line outs whenever the ball goes out in rugby union rather than by having a scrum, but all I am saying about it is that one bears in mind the nature of the game and in relation to that it is a question of what is reasonable for it to be done in terms of the rules.
McHUGH J: Take Australian Rules. The spectacular mark, the leaping marks are one of the highlights of the game but it obviously brings a lot of injuries, knees come in contact with people’s faces and other parts of the body. You would eliminate a lot of injuries in Aussie Rules, I would think, if you abandon that mark. Are the administrators negligent because they do not deal with that?
MR JACKSON: Well, your Honour, it might very much depend on the particular case. I would not pretend to be familiar with the rules of that game, but may I just say in relation to it that assume the rules of those – rules change. I mean, there may be some restrictions on doing that that are thought to be appropriate, thought to be reasonable.
McHUGH J: But it really comes down at the end of a case of courts and juries governing sport. That is what it comes down to.
MR JACKSON: That is one of many human activities. As soon as one steps on the playing field, it does not mean that one is in a situation where any duty is gone.
McHUGH J: Well, it is one thing to say there has been a breach of the rules, somebody is injured, as in Fraser in the Malcolm Johnstone Case where Johnstone rides contrary to the rules and causes serious injury to somebody. It is one thing to say he should be liable in those circumstances. It is another thing to say that if you play within the rules and you are injured, nevertheless somebody is liable for your injury, which seems to be what you are saying.
MR JACKSON: What I am saying is ‑ ‑ ‑
McHUGH J: Because you say the rules should be different.
MR JACKSON: Yes, your Honour. What I am saying is that if it becomes apparent that there is a demonstrated inadequacy in the rules, then the time has come for the rule-making body to do something about it.
GLEESON CJ: What you are saying is that when you undertake the function of being a rule maker, you undertake a legal responsibility to everybody who plays according to the rules to take reasonable care to prevent exposing them to what you call unnecessary risk. At the moment I have great difficulty understanding how a court goes about determining what is or is not an unnecessary risk in relation to an inherently dangerous sport.
MR JACKSON: Your Honour, it is a matter in relation to which one would expect there could be evidence called. Indeed, the medical evidence to which some reference was made earlier did indicate that the possibility of this type of injury could be very significantly reduced by taking measures which were identified.
McHUGH J: What about boxing? As the Chief Justice pointed out yesterday, the whole object of the sport is to render your opponent unconscious.
MR JACKSON: Of course, but one does have the element of consent in that.
McHUGH J: Well, it might be said that you have the element of consent in this particular situation as well. There is nothing that you could not avoid. Take horse racing. If you require every jockey to be at least four or five wide of each other horse in the race, you would probably eliminate a lot of falls and risk of injury but some people might object that it would ruin the spectacle and the competition.
HAYNE J: The outcome more predictable.
MR JACKSON: If one took the question of whether jockeys should wear some protection under their silks which some race clubs would seem to make mandatory now. Now, that is something based on a desire, a perceived danger to jockeys who have fallen and they might come in contact with horses running over them and so on. Now, that is something – a rule is made. It might, in a future case, if a number of clubs have adopted a rule of that kind, for example, or the need is demonstrated, it might well be said that the club itself was negligent by not adopting a rule of that kind. That is one thing.
If one took another case. Assume a sport that is an inherently potentially dangerous one like fencing. I would not pretend that I know the right name for the thing but the button or whatever it is that is at the end of the weapon that is used, if someone manufactures one of those that is defective and falls off and a number of people are stabbed, one would think that the people who make the rules for that activity, once they became aware of it, should be able to ban the use of that particular item, and, it may well be negligent for them not to do it, or, if it became apparent in fencing that a particular type of protective gear had something wrong with it then it might be appropriate in the interests of safety for them to ban the use of it.
Your Honours, could I – I will not be too much longer on this aspect of the case if I may go back to it. What I was going to say was that if the - one sees that, if one goes to page 122, the Laws Committee, which in 1988 had five of the appellants on it, was in fact an active body and you will see the various – it had a meeting, it referred to the laws of the game at page 122, then paragraph 3 on page 123 there is the recommendation about changes “(other than for safety matters)” and you will see the document which is at page 124 which is the memorandum of the Board which has been extracted earlier, and particularly the bottom of page 124 and the top of page 125.
Now, what we would seek to say is that if one looks at the question of causation and effect in relation to this aspect of the case, my learned friend said, well, the Master found against us on this issue and so did Justice Badgery-Parker. Justice Badgery-Parker, although his ultimate conclusion in the matter before him was for the other side, in fact found in our favour. Your Honours will see at page 591 in volume 3 commencing at about line 21 – the passage goes through from there to page 596 at about line 5. May I take your Honours to what are the most significant parts of it. Your Honours will see the paragraph commencing at page 591, about line 21, where he set out what the plaintiff had to establish. Then, about line 39 on the same page, and that goes through to the end of that paragraph on page 592. He referred to the fact that there was – this is in the next paragraph on page 592:
the plaintiff has established to the standard necessary at this stage of the proceedings that there was a risk of injury and that the defendant ought to have been aware…..that the force of the impact at engagement of the scrums could be reduced by rules regulating the conduct of the opposing forward packs.
That is based in part on the article and the contents of the article. I have not yet come to that.
Now, his Honour, then dealt with an argument which had appealed to the Master and which our learned friends have raised again and that is, that they were just playing in accordance with the existing rules and what happened was that someone breached the rule. And his Honour referred to the fact that one might recognise that as a possibility that that would happen, and that is, I think, in the remainder of ‑ ‑ ‑
GUMMOW J: How does that fare, Mr Jackson? I have been puzzling about this, what you just said on page 25 of the pleading, paragraph 14. Is it being said there – this is in the Hyde pleading, I think – the pleading sets out the existing rule, Law 20, then it says certain people were of a certain character and then 14 narrates some events. Are those events said to involve breaches, or to be understood as involving breaches of existing law?
MR JACKSON: I think the answer is yes, your Honour, in the sense of charging before the scrum was set.
GUMMOW J: Yes.
MR JACKSON: And the point, if I could say this, your Honours, about that was that an argument for the other side, and one accepted by the Master in the case, was that the rule changed for which we contended was irrelevant because, in reality, all that happened was that someone did not obey the current rules.
GUMMOW J: Yes.
MR JACKSON: And the point I am seeking to make, your Honours, is that if one looks at what was said by Justice Badgery‑Parker at page 592, about line 45, and the following pages, up to 596, he cites what the Master had said in the passage quoted at page 593, having earlier recited the submission at the top of page 593 and the bottom of 592. Your Honours will then see that he says, at 593, line 42, that the Master had fallen into error. Your Honours will see that then dealt with in the remainder of that passage and, in particular, if I could go to the top of page 594, about line 5, he said:
the plaintiff is entitled to put his case on the basis that it was reasonably foreseeable and the defendant ought to have foreseen that some players of the game of rugby would from time to time infringe the laws and would even engage in dangerous play –
et cetera.
GUMMOW J: Is it being said, they infringed the present laws; they should have had other laws and they could have infringed them as well?
MR JACKSON: Well, your Honour, it is a question of what the other laws said, of course.
GUMMOW J: Yes.
MR JACKSON: And if you had a situation where the other laws made provision, and one example is given in the passage quoted at page 594, that would prevent, or would be likely to prevent that kind of thing from happening – two front rows ‑ ‑ ‑
McHUGH J: I think the strength of your case is on this point, if you had the adoption of the crouch position, so that engagement between the packs takes place in steps, and if they are much closer together there is much more chance that the risk of injury be eliminated.
MR JACKSON: Yes, your Honour. One of your Honours observed yesterday is the case one of a value of a chance, in effect, and in some respects that may well be.
GAUDRON J: I missed that – value of the ‑ ‑ ‑
MR JACKSON: One of your Honours observed yesterday that perhaps one view of the respondents’ case is, ultimately, that it comes down to a question of what would be the prospect of not being injured if the rules had been suitably changed. And, your Honours, perhaps that is one approach to it, although it may not be the ‑ ‑ ‑
GLEESON CJ: Even so, the point that Justice Gummow raises does highlight the extent of the responsibility that you say these rule makers undertake, does it not? One of the things they have to bear in mind in making the rules is that they are disobeyed, apparently. And they have not only got to make the rules proof against what you say is unnecessary risk, they have also got to take account of the risk of disobedience of the rules they make by over enthusiastic players.
MR JACKSON: Well, your Honour, that is, in terms of making any kind of rules, even if they be rules of court, one matter that one would expect to keep under review. Is the rule being obeyed? Now, your Honour, if you have circumstances where it becomes apparent that with the current rules injuries that need not happen are occurring, then one ‑ ‑ ‑
HAYNE J: Occurring by reason of breach of those rules or occurring within the rules?
MR JACKSON: Well, it could be either, your Honour. What I was going to say was this: if it becomes apparent that injuries are occurring with - and if I could use the term neutrally for the moment - the current rules, one would need to look to see whether the injuries are ones caused by occasional breaches of the rules, so that the rules may not need change, or whether the situation is that the rules are inadequate because they just will not be followed or will not be sufficiently followed and, your Honour, that is essentially what we would say I think about that. Your Honours, the ‑ ‑ ‑
HAYNE J: The point being, as I understand it, that a rule maker might, for example, have to take to account that “professional fouls” were taking place in the course of play because there was insufficient penalty for that kind of conduct and that the rule maker should, therefore, adjust the penalty thereby discouraging the occurrence of the event which might lead to injury.
MR JACKSON: Well, your Honour, that is perhaps one method of resolution of it.
HAYNE J: Yes, not the only one.
MR JACKSON: No, no, but another way of doing it – and this is really what this case comes to – is to say there needs to be a different rule which prevents the possibility of injury, not just makes it more likely that your side is going to lose if you do something.
McHUGH J: But I notice at page 112, I think it was, where there was a reference to “dangerous practices by some props must cease”, which seems to indicate that they were still within the rules but they were engaging within some dangerous practices.
MR JACKSON: Well, you see, your Honour, no doubt there are different levels – different ways in which conduct that is thought to be inappropriate, if I can put it neutrally, can be dealt with. One is by a penalty, but the penalty is in the end likely to result in making it more difficult for one team to win, whether you send players off without the ability to be replaced, give a free kick or something of that kind. Another thing is to say to those controlling the game at various levels, be it referees, administrators, coaches and so on, “Well, you have got to make sure this rule is obeyed.” Another way is to say, “Well, the rule itself needs to be changed because it is just not doing the job.”
GAUDRON J: Mr Jackson, I really do have some difficulty about analysing causation in circumstances where there is a positive and illegal act, which on the pleadings is the direct cause, and then in the background is an omission. I mean, I am not aware of having encountered the conjunction of this floating omission, if you like, with a positive legal act and it seems to me to be somewhat different from the employer case where really the employer has got a duty to protect against – well, the employer is responsible for the acts and omissions of his own employee, so it is not that case at all.
MR JACKSON: No, your Honour, I was going to come in just a moment to what was said by members of the court in Rootes v Shelton where, in dealing with the duty of care owed by participants in a game, in a sport one to another, it was said that what had to be recognised was that people might not always obey the rules and that one might have, I suppose, instances of negligence happening by reason of people obeying the rules and people not obeying the rules. But, your Honour, what I was going to say more directly in response to your Honour was this, that you do have a situation where it would be possible to identify two causes which are the causes for the injury sustained by the plaintiff. One can say, well, it was caused by the players in the opposing team, by charging the others before the scrum was properly set and seeking ‑ ‑ ‑
GAUDRON J: It is correct that in both cases there was disobedience to the rules, is it not?
MR JACKSON: I think that is so, your Honour, yes. I am sorry, it was in Hyde, your Honour, that was a disobedience. In Worsley, I do not think that is so. The statement of claim in Worsley, your Honours, is at page 82, and what had happened was, as you will see at page 84 line 10, they engaged before the others were ready. Now, your Honour, I do not think it is said directly that was a breach of the rule. It is elaborated upon at page 234 and 235 in volume 1, where he referred to the fact the game was being played hard but fairly, and “hard, but cleanly”, that is at the bottom of page 235. At the top of the next page, the scrum had to be “re-set” because their hooker was injured - “set, or re-set”. He jumped to the middle of the pack and they came straight in.
GLEESON CJ: How does that line up with the rules?
GUMMOW J: The rules are not pleaded here.
MR JACKSON: No, they are not, your Honour.
GUMMOW J: In this statement of claim which may suggest something.
MR JACKSON: Yes, your Honour, the rule that was in question in Hyde is subrule (3) at page 20, “form down…..and rush against them”.
HAYNE J: To be read in the light of the preceding four lines, though.
MR JACKSON: Yes, your Honour – I am sorry, your Honour, it is speaking of the front row.
HAYNE J: Yes.
MR JACKSON: Your Honour, it may well be, if one analysed it, that there was something that would be regarded as being a contravention of the rules.
GLEESON CJ: Yes.
MR JACKSON: Your Honour, it is not exactly analysed in the materials.
GLEESON CJ: Well, the allegation in Worsley, as I recollect it,was that the opposing scrum came on them before they were ready to receive.
MR JACKSON: Yes.
GLEESON CJ: It made it sound a bit like a tea party.
MR JACKSON: Your Honours, what I was going to say was that I had not taken your Honours to the article which appears in volume 1 at page 237. Now, your Honours, it is perfectly right to say this article was published in the 3 August 1987 volume of the Medical Journal of Australia. You will see in the abstract on page 239 a reference to:
A review of 107 footballers who suffered a spinal-cord injury between 1960 and 1985 has been undertaken. Since 1977, the number of such injuries…..has increased –
and then your Honours will see a reference to the fact that Rugby Union being:
clearly the most dangerous game…..collision at scrum ‑ ‑ ‑
GLEESON CJ: Where is that?
MR JACKSON: I am sorry, your Honour, that is at about line 27 on page 239, the left column.
GLEESON CJ: Thank you.
MR JACKSON:
Rugby Union is clearly the most dangerous game…..This study has shown that collision at scrum engagement, and not at scrum collapse, is the way in which the majority of scrum injuries are sustained. These injuries are largely preventable, and suggestions for rule changes are made.
That is the abstract, of course. You will see, your Honours, if I could just go to about line 40:
In recent years there has been an increasing awareness in Australia and overseas –
could I just say, your Honours, there is reference to footnotes 1 and 2, which you see at page 243, and whilst it is a little hard to read, footnote 2 refers to injuries of the spine sustained in RUGBY in what I imagine is the British Medical Journal. You will see that item 1 is “Injuries to the cervical spine in schoolboys playing Rugby football, J Bone Joint Sur.” from Britain, so this material dealing with the general topic appears to have been around in 1984, I think they both are.
I should say, your Honours, that the report was deposed to, you will see that at pages 237 and 238, by Professor Taylor. Now, your Honours, he refers to the nature of the study carried out and that is about line 45:
aimed to determine the exact incidence of these injuries in all football codes and to pin-point, if possible, any features in play where preventive measures might be applied.
Now, your Honours, I will not go through it all, of course, but could I just take your Honours, perhaps, to page 241, line 30 in the left column:
In Rugby Union, 62% of the players were injured in scrums.
Then the mechanism of scrum injuries is dealt with at line 44 in the left column:
The high frequency of injuries in scrums led us to pay particular attention to this facet of play.
I will not read out that paragraph but your Honours will see particularly the reference to “the force of impact at the engagement of the two sets of forwards” and they speak about that. Then at page 242 line 9, left column:
Illegal play allegedly was responsible for 26% of the injuries, but few players could confirm their opinions by reporting that a penalty had been awarded against the offending team. This factor, if it is truly relevant, had a comparable frequency in both schoolboy and adult injuries…..However, in schoolboy injuries, assertions concerning illegal play were confined almost entirely to Rugby Union.
At the bottom of page 242 in the right column there is a discussion. The authors say in the second sentence:
Clearly, games must be made safer even though, by their very nature, some injuries are inevitable in body‑contact sports. Nevertheless, it would be foolish not to acknowledge that a broken leg is one thing, and quadriplegia quite another. Such a devastating disability, the tragedy of which cannot be measured in words, changes completely not only the life of the injured player, but that of his family, who must care for him for the rest of his days.
Your Honours will see at the bottom of the page, the last three lines:
The data give cause for genuine concern and particularly so for the administrators of the games, those who formulate the rules, and the referees who have the responsibility to see that they are applied correctly.
Your Honours will then see at page 243 commencing at about line 19, while they say that they could not identify a precise explanation for the increase in injuries since 1977:
It could, in part, be due to increases in the number of players…..increases in the number of games –
Then they refer to the fact of a new concept from 1971, power scrummaging, introduced by the British Lions in 1971 and subsequently to Australia, changed the role of the rugby scrum:
but the increase in the frequency of injuries includes all phases of play, and is mirrored in all codes except soccer. It seems likely that increased aggression is a major factor…..It is true to say that all sport has become more competitive, and in body‑contact sports, increased competitiveness has the inevitable corollary of more aggressive play.
Your Honours will then see at the bottom of that column there is a reference to:
In 1985, the Australian Rugby Football Union, in an effort to prevent serious neck injuries, introduced a new set of rules for players of under 19 years of age and altered the laws for adults, particularly in relation to scrummage.
The detail of that alteration, if there was one, does not appear in the material.
GLEESON CJ: How does that line up with the theory that they had to abide by the international rules?
MR JACKSON: The authors of this are not really devoting their attention to the question of whether those alterations did or did not comply with the international rules and your Honour will see, also, that they applied only to matches for the under 19 groups and they, I think, may not be covered by the ‑ ‑ ‑
GLEESON CJ: They altered the laws for adults, too.
MR JACKSON: I am sorry, your Honour?
GLEESON CJ: According to this, they altered the law for adults, too.
MR JACKSON: Yes, I am sorry, I had missed that in answering your Honour, yes. Well, it may well be that they are simply bringing in what was done by the Board. What I was saying, however, about the – the authors of this were not really following through to identify whether the Australian body had been acting independently or simply applying what was done.
GLEESON CJ: Yes, but coming back to your argument about duty, what appears on the top of the right‑hand column is interesting. These people make a positive suggestion as to the way you could eliminate, or largely eliminate, scrum injuries. Now, that suggestion has never been taken up, as I understand it, in the rules, but how does a court go about dealing with an argument from somebody who is injured in a scrum which says, “There is a suggestion as to how you can eliminate scrum injuries by a change in the rules. The rules have never been changed to take up that suggestion. That is evidence of negligence.”
MR JACKSON: Well, it may be evidence of negligence but the question would be whether in those circumstances, together with such other evidence as might be perhaps given by the people who were the defendants, or adduced on their behalf, first, the correctness of that view might itself be put in issue. Secondly, there might be evidence adduced to show that it was one of a number of possibilities but that it was, in effect, going ‑ ‑ ‑
GLEESON CJ: Yes, but suppose the administrators sought to justify their action by saying, “We do not want to de-power scrums. That is part of the appeal of the game to spectators and part of the appeal of the game to players. Part of the appeal of this game to players is the room for aggressive competitiveness.” What would be the principle that would enable a court to evaluate that kind of – if I can put the word in inverted commas – “justification” of not adopting that?
MR JACKSON: Well, what it would be would be the court in such a case should say, we would submit, that that risk is one that, having regarding to what the sport is, broadly speaking, is unnecessary. It is one thing to have people playing in a game where the object of the game is to achieve a publicly attractive game, one the players will enjoy, one that one side will win and one side will lose and matters of that kind, but, it is another thing to conduct a game in such a way that one is just taking a risk on there being serious injury when there is a known likelihood of serious injury in circumstances where that could be easily avoided.
GLEESON CJ: But part of the attraction of the game is watching physically strong, sometimes hot-headed, young men seek to dominate one another, physically.
MR JACKSON: Yes, your Honour, but it could hardly be a legitimate attraction of the game to see one of those every so often lying on the ground after the scrum has moved on unable to move for the rest of his life.
GLEESON CJ: Exactly, and that then leads to the question, “How would the administrators or the rule makers set out to justify not complying with what I will assume for the purpose of this question is a valid medical opinion as to how you could largely eliminate the risk of scrum injuries?”
MR JACKSON: Well, your Honour, what they would do, I should think, would be to say, first of all, “We have considered this” – perhaps I could start a little earlier. They would say, “This had not been – the possibility of this had not been drawn to anyone’s attention at a time that was relevant to the present cases. We recognise it now. We did not know of it then. We have taken steps to obtain information from medical practitioners skilled in the field, many of whom, I suppose, have played the game, like Dr Vanderfield.” You get evidence from people of that kind of what they had done to try to avoid injury and, your Honour, if I could just go back to what they said they were doing and, if one goes back to page 110, they took it as their responsibility:
to monitor the safety aspect of the game and endeavour to identify deficiencies in…..the Laws of the Game.
And that the law changes they had made were ones which had “exceeded expectations” reducing “the incidence of serious injury”. Now, your Honour, it may be that their defence or justification would succeed; it may be that it would not, but they just would have to act reasonably, nothing more than that. Your Honour, I do not know that I can add anything to that. Your Honours, could I just say then – and I have nearly finished with this document - at page 243, in the right column in the third line of the paragraph commencing “Far more emphasis” the authors say:
in Rugby Union…..a strong scrum and a forward pack which advances in rucks and mauls have become high priorities, particularly at the representative level.
They go on to say that schoolboys model their play on their elders, in effect, and then they say a little further down:
There is every good reason for immediate changes in the rules to “depower” Rugby scrums. (The stabilization of a scrum, although important, is less relevant in the prevention of these tragic injuries.) After all, in simple terms, a scrum is a method by which to bring the ball back into play after a rule infringement;
Your Honours, I think that is really all I want to say about that. What it does demonstrate, in our submission, is that there is a period where there had been a change in the game. The scrum had become something that was more important. The need was to depower it and some measures were indicated as being appropriate ones. Right to say, of course, is that the article itself is after the events but the injuries were ones that had occurred before and many other similar cases had also.
Your Honours, in relation to duty of care, what we would submit is there is nothing very surprising about regarding those who are in control of the sport as being under a duty of care to participants. Could I take your Honours to Rootes v Shelton (1967) 116 CLR 383, to which I adverted earlier, and, your Honours, they were various participants in water skiing and one sees, if I could go first to what was said by Justice Kitto at page 387, your Honours, could I start on the first new paragraph on that page and observing, if I may in passing, your Honours, that the Court might have to be a little more Trappist than it sometimes is if one were to follow what is in the preceding paragraph, but, your Honours, if one goes to the first new paragraph on page 387, your Honours will see that his Honour observes nothing:
new or mysterious about the application of the law of negligence to a sport or a game. Their kind is older by far than the common law itself. And though water skiing may be slightly faster than chariot‑racing it is…..simply an activity in which participants place themselves in a special relation or succession of relations to other participants, so that adjudication under the common law upon a claim by one participant against another for damages for negligence in respect of injuries sustained in the course of the activity requires only that the tribunal of fact apply itself to the same kind of questions of fact as arise in other cases of personal injury by negligence.
Now, your Honours, may I invite your Honours to read the rest of the paragraph. I will not read it out but we would invite your Honours to read that. Could I refer then to what was said by Chief Justice Barwick, with whose reasons Justice McTiernan agreed? At page 385, in the paragraph commencing halfway down the page where his Honour said:
By engaging in a sport or pastime the participants may be held to have accepted risks which are inherent in that sport or pastime : the tribunal of fact can make its own assessment of what the accepted risks are : but this does not eliminate all duty of care of the one participant to the other. Whether or not such a duty arises, and, if it does, its extent, must necessarily depend in each case upon its own circumstances. …..the rules of the sport or game may constitute one of those….but…..they are neither definitive of the existence nor of the extent of the duty; nor does their breach of non-observance necessarily constitute a breach of any duty found to exist.
His Honour referred then to there being some “some risks inherent in the nature of water skiing”, but that did not mean there was no duty and one sees his Honour conclusion, the first new paragraph on page 386:
In my opinion, the appellant was entitled to have the respondent exercise reasonable care in carrying out his part of the operation in which they were co-operating –
Now, your Honours, if I could just pause there, that expression “carrying out his part of the operation” is one which is used by the members of the court in the case, and I will take your Honours to that in a moment, but it is germane, in our submission, to describe a situation like this. I do not mean the facts are at all similar, of course, but the part of the operation that was performed by the members of the Board was to make the rules. That was their part of the operation, that people would participate under those rules they were entitled to have those who made the rules act with due care in their part of the operation.
Could I refer your Honours to Justice Taylor at page 391. Your Honours will see that he said, at about point 4 on the page, that he agreed with Justice Owen but wanted to add some observations of his own. The particular one to which I wish to refer, your Honours, is at page 392, about the last 10 lines of his Honour’s reasons. Your Honours will see that he said that:
It seems to me that the issue which was substantially left to the jury was whether the appellant’s injuries had resulted from a risk inherent in the sport or whether they had been caused by the respondent’s conduct in unreasonably exposing him to some additional risk, that is to say, a risk to which his participation in the sport could not be said, necessarily or ordinarily, to expose a participant. This…..was essentially a jury question –
Your Honours will see at page 396 that Justice Owen, at about eight lines from the top of the page, said:
Prima facie the appellant in the present case was, it seems to me, entitled to have the respondent exercise reasonable care in carrying out his part of the operation and I can see nothing in the evidence upon which it could be found that the appellant had voluntarily assumed the risk that he might be injured as the result of –
et cetera. Now, your Honours, I submitted earlier that the nature of the duty could be stated in various ways that I mentioned to your Honours, and I will not go back over that. What we would seek to say, your Honours, is that the cases to which we have referred are in our written submissions at page 14, paragraph 49, also show that there is really nothing new in the notion that participation in a sport, in one or another, carries with it duties of care.
Your Honours, having said that, could I then perhaps go back, in a sense, to the construction of Part 10 of the rules. Your Honours, we would say, it is clear, of course, that the starting point has to be the terms of Part 10 itself and, your Honours one notes in passing that in relation to the English rules, Lord Goff said just that in his speech in Seaconsar (1994) 1 AC 438 – the reference is at page 449E. Now, your Honours, it is an observation in passing. One does need to bear in mind that the approach in Part 10 differs from some other forms of rules. In particular, it contains no stated requirement for prior leave to serve outside the jurisdiction. It contains no requirement for verification of the cause of action within it, at least, as in the order 11 rule 1 in the United Kingdom in the Dreyfus Brothers Case or, indeed, in Seaconsar.
Now, your Honours, whatever be the reason for the change, whether it be to relieve members of the court, or the court’s officers, from having to hear applications before the service of the ‑ ‑ ‑
GLEESON CJ: Or the parties from expense.
MR JACKSON: Yes, your Honour, or the parties from expense. Whatever be the reason for the change, the change has occurred and the rules have to be construed as they are. What it does show, however, is that any suggestion that it is an invasion of the sovereignty of the other state to effect service in it, in the first place, without leave is a notion that seems no longer to be incorporated as it were in the rules.
Now, your Honours, instead rule 2, of course, provides for a judicial determination of whether the action should proceed against the party out of the jurisdiction after service. And, your Honours, it is at that point in our submission that there arises for consideration the question whether the proceedings satisfy the relevant provision of order 1A, and in some cases, of course, no difficulty will arise. There will be a statement of claim. It will contain all the necessary allegations in terms of rule 1A, and one would expect it to be, in effect, sufficient. It would demonstrate the action was of the relevant kind.
But, your Honours, in other cases that will not be the case. Some additional material may have to be relied on to show that jurisdiction is attracted, and, of course, many proceedings start by the other method of institution of proceedings in the Supreme Court of New South Wales by summons. Your Honours will see that dealt with in Part 4, rules 1 and 2 of the rules and in those cases it would seem it would be probably necessary to have further material to show that the nature of the case brought it within rule 1A.
Could I mention one matter, your Honours. Your Honour Justice Hayne mentioned the possibility that a plaintiff might proceed to judgment, in due course, after service overseas. Notice of that possibility is required by the notice that is referred to in rule 2A of Part 10.
HAYNE J: Where do I find the prescribed form? Just the reference.
MR JACKSON: Yes, your Honour, I have copies I can give to your Honours later but, in fact, the form of notice appears at the end of each of the statements of claim. In this case, for example, page 34, line 29, and it goes over to the top of the next page. Now, I should say one thing about that form of notice. Your Honours will see paragraph 1 at page 34. In relation to that, that may not perhaps reflect the width of rule 6A, but that is the form that is required by the rules.
Now, the defendant then has the opportunity under rule 6A, and, we accept that on the hearing of an application under rule 6A the Court is entitled to go into the circumstances of the case. That is a question of the extent to which the Court would go. We would say, in the first place, that if the defendant shows that the case is one which is bound to fail as a matter of substance - and, that is an expression, the providence of which I will come to in a moment – the defendant should be entitled to have the service set aside. That expression “bound to fail” at least in more modern usage - one sees it in the Multinational Gas Case (1983) 1 Ch 258 at page 268C:
Fourthly, that an action is not properly brought against a party within the jurisdiction of it is bound to fail: –
You can see it referred to, also, at page 275G, the fourth line of that paragraph, and at page 282B.
HAYNE J: But that is in the context of the rule talking about proper joinder of action properly commenced within – on parties within.
MR JACKSON: I am sorry, your Honour, I was not seeking to take it from any particular place except to say that we will accept that under rule 6A, if it appeared that for whatever reason the action was one that was bound to fail, then it would be appropriate to set aside service if there were some statutory provision, for example, that prevented the action being brought, if it could be demonstrated that there had been some release, for example, from the particular kind of litigation, the action had been settled or something, some action had been settled or that there was an agreement of some kind which would prevent the action going ahead.
But it is difficult, in our submission, to go to some kind of intermediate stage or intermediate test bearing in mind the fact that it is not the trial of the proceedings which goes beyond something of the nature of an action which is bound to fail. It is difficult to do so, in our submission, partly because the provision of rule 6A is applicable to a wide range of circumstances dependent in part on findings of fact, on evaluations of fact by tribunals of fact and on the application of the law to particular, sometimes novel, situations and also on identification of the law.
Perhaps one could say – and it may in many senses be just the same test. Perhaps the test is: is there a question to be tried? I mentioned this before. If we could put an entry into the competition, is there an arguably good case? Approaches of that kind, in our submission, are reflected in some of the observations by Lord Davey in the Fabrik Case 90 LT 733 at paragraph 735. I was going to take your Honours to the left column at page 735 and ‑ ‑ ‑
GUMMOW J: What was going on in this case procedurally?
MR JACKSON: Your Honour, it was an order refusing a motion to discharge an order giving leave to issue a writ and serve it out of the jurisdiction.
GUMMOW J: Where the requirement was a good cause of action before leave under order 11, which is set out in the first column.
MR JACKSON: Yes, your Honour, that is right, page 734. I am not seeking to refer to the case as being based on rules that are the same as these but simply to seek to derive from what is said at page 735 in the left column by Lord Davey, some observations which are material to the provisions with which your Honours are concerned. The part I was going to go to was about 12 lines down the left column:
On the other hand, the court is not, on an application for leave to serve out of the jurisdiction, or on a motion made to discharge an order for such service, called upon to try the action or express a premature opinion on its merits, and where there are conflicting statements as to material facts, any such opinion must necessarily be based on insufficient materials.
He then went on to deal with the particular rules, saying:
But I think that the application should be supported by an affidavit stating facts which, if proved, would be a sufficient foundation for the alleged cause of action…..A more difficult question is where it is in dispute whether the alleged or admitted facts will, as a matter of law, entitle the plaintiff to the relief which he seeks. If the court is judicially satisfied that the alleged facts, if proved, will not support the action, I think the court ought to say so, and dismiss the application or discharge the order. But where there is a substantial legal question arising on the facts disclosed by the affidavits which the plaintiff bona fide desires to try, I think that the court should, as a rule, allow the service of the writ.
Your Honours, that, in our submission, is an appropriate course to be adopted. Your Honours, it has found some support, from what was said by Viscount Simonds, with Lord Normand agreeing, in the Vitkovice Case, in (1951) AC 869, and the particular passage is at the bottom of page 879, where what Viscount Simonds said was, in the last three lines on page 879:
the question is not so much whether a prima facie case has been made out as whether upon all the materials then before him, the judge is of opinion….. – I can find no better word – is a proper case –
your Honours, could I just pause to invite your Honours to note the next words “to be heard in our courts”, and that is what is being considered. Is the case one to be heard? Your Honours, that is the issue with which the court is there concerned. That is whether the case is a proper one to be heard by the local court. If one goes through to Lord Oaksey at the bottom of page 881, his Lordship said:
Even if there were only the slightest evidence as to the breach of the pensions agreement having been committed within the jurisdiction, the evidence as to forum conveniens is, in my opinion, such as to make it sufficiently to appear that the case is a proper one for service out of the jurisdiction.
Now, your Honours, Lord Tucker, in the same case, had noted at the bottom of page 890, a passage that commences about two‑thirds of the way down the page, the sentence commencing, “Suppose it is sought”. It is a passage, your Honours, that goes over to about point 2 on the next page, but the cogency of the evidence, in effect, will vary with the particular type of case involved and your Honours will see that the Court of Appeal in this case, at page 710, made a very similar observation.
Now, your Honours, the view that the court is not determining the case, except in the case where it is obvious that it cannot succeed at that point, is reflected, in our submission, to some extent in the approach taken in the reasons in this Court in the Contender 1 Case, to which reference was made earlier, that is Contender 1 v LEP International Limited (1988) 63 ALJR 26. Now, your Honours, that was a case, of course, where at first instance it had been held that there were complex questions – I am sorry, it was a matter where the Court of Appeal, as appears at page 28 in the right column in the first new paragraph on that page, adopted the course of saying:
that there was no injustice…..in allowing complex questions of disputed fact to go to trial -
now, your Honours, if one leaves aside the particular procedures and so on that were involved, that is an appropriate approach to be taken, in our submission, in determining a question which can arise under rule 6A. Now, your Honours, that too – I am sorry, your Honours, could I say one further thing and it is this, that the cogency of the evidence involved is likely to vary from case to case but, your Honours, whilst the assumption made, and the assumption that underlies rule 6A is that jurisdiction has already been invoked, it does not follow that the circumstances attracting jurisdiction are irrelevant.
Could I give one example? If the only basis for service on an overseas defendant was the occurrence of damage in New South Wales – that is rule 1A(1)(e) – that may be relatively fortuitous because most of the damage may have occurred elsewhere, but in the case of continuing damage the person may have come to New South Wales. But, if, as well, the tort had been committed in New South Wales there may well be grounds for saying, “Well, this is ‘the natural’ or ‘a natural’ venue for the matter”. So, that, one cannot, in our submission, leave that out of the count.
Now, our learned friends took your Honours to various passages in the reasons of the Court of Appeal but the Court of Appeal appears to have made clear the test that was being applied at page 719. At the bottom of page 719, their Honours said:
While it is appropriate to require a “good arguable case” for the purposes of determining whether or not the matter falls within one of the preconditions set out in r1A, the strength of the evidence needed to establish a cause of action/tort as a condition of leave to proceed based on paras (a), (d) or (e) should not be regarded as much, if anything, more than is required to survive a strike out application in accordance with the well known principles applicable in this Court.
Your Honour, I mention that simply because of the fact that it was said that one could not see the approach that had been adopted, but it appears to be there.
Your Honours, could I then go to the question of the location of the tort, because that is relevant to the matter to which I was referring a moment ago. If one goes to Part 10, rule 1A, subrule (1)(a) says that originating process may be served out of the State:
where the proceedings are founded on a cause of action arising in the State –
and (1)(d) where they:
are founded on a tort committed in the State.
Now, your Honours, in determining whether, on the facts of any case, the cause of action arose in New South Wales or the tort was committed in New South Wales, one feature which is clear from the decisions, in our submission, is that one has to look at the circumstances of the particular case and, of course, ex hypothesi, the issue is unlikely to arise unless some of the relevant steps have occurred in one jurisdiction and some in another.
Your Honours, if I could go for a moment to Distillers’ Co v Thompson (1971) AC 458, that could be seen from the facts of the case where the Privy Council dealt with failure to warn of the possible dangers of thalidomide in medication being taken by women who are pregnant. As the Court has seen, at page 468, about letter D, after referring to the three possible theories and discussing them, the Privy Council said that:
The right approach is, when the tort is complete, to look back over the series of events constituting it and ask the question, where in substance did this cause of action arise?
And your Honours will see that is discussed then at page 468E through to page 469E.
Now, your Honours, if I could just pause to say, in relation to that case, what your Honours will see is that it was one that involved the distribution of materials that were to be used in various parts of the world, throughout the world as it were, and they were materials which would have an effect and cause damage in the places where that took place.
Now, your Honours will see that the result that was arrived at by the Privy Council there, your Honours, was, if one goes to page 469 about letter C:
That warning might have been given by putting a warning notice on each package as it was made up in England. It could also have been given by communication to persons in New South Wales – the medical practitioners, the wholesale and retail chemists, patients and purchasers. The plaintiff is entitled to complain of the lack of such communication in New South Wales as negligence by the defendant in New South Wales causing injury to the plaintiff there.
Now, your Honours, in a case such as the present a perfectly open view of the circumstances is that if you look at the rule making which took place, either somewhere in the United Kingdom or somewhere else – it really could take place anywhere in the rugby countries if they so chose – but until operated upon or utilised, the next stage in the chain of causation did not occur. And the significant thing then is the playing of the game and it is the playing of the game that leads then to the injury.
GLEESON CJ: Is that a convenient time?
MR JACKSON: Yes, your Honour. Your Honour, I expect to be 20 minutes to half an hour.
GLEESON CJ: And how long do you think you will be, Mr Deakin, in reply?
MR DEAKIN: There is only one matter I want to raise with your Honours at the moment in reply.
GLEESON CJ: All right. Then we will resume at 2 pm.
MR DEAKIN: Would it assist your Honours to have that list of the appellants and their location now?
GLEESON CJ: Yes. Just hand them to the associate.
MR DEAKIN: There is one thing my learned friends have asked us to have noted in relation to the list and that is on page 2, your Honours, there are references, as your Honours have already heard, to Messrs Kendall‑Carpenter, Connon, Blazey, Craven, all of whom are now deceased. My learned friends have asked for it to be noted that because they had already died, neither Kendall‑Carpenter nor Craven were ever served, your Honour.
GUMMOW J: Which ones?
MR DEAKIN: Kendall‑Carpenter and Craven. We do not object to that, of course.
GLEESON CJ: Thank you very much. We will adjourn until 2 pm.
AT 12.48 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.02 PM:
GLEESON CJ: Yes, Mr Jackson.
MR JACKSON: Thank you, your Honours. I was dealing with the question of the location of the tort and I had referred your Honours to Distillers Co v Thompson. I had referred your Honours to the proposition that the right approach was to ask where in substance did the cause of action arise. Now, that approach was, if I could use the expression, picked up by four Justices in Voth v Manildra Flour Mills Pty Ltd 171 CLR 538. I wanted to take your Honours to page 567. The relevant passage is at page 567, about halfway down the page where their Honours say:
The authority of Jackson v Spittall was expressly affirmed in Distillers. In the latter case Lord Pearson said that [t]he right approach is –
and, your Honours will see that is set out. Then, if one goes to the bottom of that page, what your Honours will see is the commencement of a discussion of torts where acts pass across space or time and their Honours say:
an act passes across space or time before it is completed. Communicating by letter, telephone, telex and the like provide examples.
They refer to what was said by Lord Denning in Diamond:
that a representation or a statement effected by telephone or telex takes place “where the message is received –
and so on. Then there is a reference to The “Albaforth” and then the part I wanted to take up from there was about halfway through the paragraph on page 568, the first new paragraph where it said:
And The “Albaforth” provides no basis for a conclusion that it is the place where the statement is acted upon which determines the place at which the statement was made. That place may have no connection at all with the place where the statement was initiated or the place where it was completed. And the place where it is acted upon may be entirely fortuitous.
But, having said that, their Honours go on to say, as your Honours will see in the next paragraph:
If a statement is directed from one place to another place where it is known or even anticipated that it will be received by the plaintiff, there is no difficulty in saying that the statement was, in substance, made at the place to which it was directed, whether or not it is there acted upon.
Your Honours will have seen, if I could just interpolate, the document to which I referred in which the amendments to the rules, for example, are set out – they are communicated:
And the same would seem to be true if the statement is directed to a place from where it ought reasonably to be expected that it will be brought to the attention of the plaintiff, even if it is brought to attention in some third place. But in every case the place to be assigned to a statement initiated in one place and received in another is a matter to be determined by reference to the events and by asking, as laid down in Distillers, where, in substance, the act took place.
Your Honours, that question, “where, in substance, the act took place”, is one that has been applied, if I could give your Honours references to two cases in Australia. One, James Hardie & Co Pty Ltd v Putt, (1998) 43 NSWLR 554 – we have only give your Honours a small part of the case. It is a case in which the court refused special leave. The complaint that was made in that case was that the conduct of the parent company in Australia, in relation both to not giving warnings in relation to products sent to New Zealand, on the one hand, but also in relation to setting up, in its New Zealand subsidiary, a safe system of work, had caused asbestos related diseases in New Zealand and the place of the tort was held to be New Zealand, and could I refer particularly to page 576.
It is the last paragraph on page 576 and going over to the top of the next page. Could I refer particularly to the last four lines of that paragraph on page 577:
Treating the export of asbestos from Australia as one step in a series which ultimately led to the plaintiff being exposed at Penrose –
that is in New Zealand –
to the asbestos dust does not make the place of the tort relied upon New South Wales.
But made it a place where it had some operation. Your Honours, the second case is a much earlier one, not very long in a sense after Distillers, and that is Jacobs, a Tasmanian case of Chief Justice Burbury, Jacobs v Australian Abrasives Pty Limited (1971) Tas SR 92, and, your Honours, that was a case where an abrasive wheel which had been manufactured – it was sent from one State to Tasmania. It broke I think in Tasmania and broke and hurt the plaintiff. The cause of action was in tort and there are two passages to which I wish to refer. At page 96, the bottom of the page, in the last paragraph his Honour said:
Looking at the alleged facts of this present case, on general principle I would think it to be clear that this is an action founded on a tort committed in Tasmania. The alleged tort is that of negligence…..must show a breach of duty to him.
And then your Honours will see – I will not read it out, but it is the passage that goes through the whole of that paragraph to the top of the next page where, your Honours, he said particularly at the top of page 97:
The breach of duty (if it be such) is not complete until the dangerous article or the article without adequate instructions or warning reaches the consumer or user.
And, similarly, your Honours, at the bottom of page 97, the top of page 98 his Honour referred to the Distillers Company Case and, your Honours, to the fact that:
The plaintiff is an ultimate consumer of the article, or user of the article, within the contemplation of the defendant, and is thus someone to whom the defendant owed the duty…..That duty was breached when the abrasive wheel came into the hands of the plaintiff as an article exposing him to risk of injury in the absence of taking precautions in accordance with adequate instructions –
and then referred to what was said by the Privy Council in Distillers.
Your Honours, could I refer to also, without taking your Honours to it, to what was said in the Metall und Rohstoff Case (1990) 1 QB 391 at pages 441 through to 443F. Your Honours, it is clear, in our submission, that the laws of the game were intended to take effect wherever the game was played, and could I refer your Honours to bye-law 5 at page 432 in volume 2. I have taken your Honours to that already. Could I refer your Honours to the laws of the game at pages 377 and 383, particularly Law 6A, sub-law – if that is the expression – (3). I took your Honours earlier to page 157, Mr Wilkinson’s affidavit, from the Sydney Rugby Union.
Now, your Honours, on the question of the location of the tort, the view taken by the majority in the Court of Appeal was to adopt the conclusion which had been arrived at by Justice Badgery-Parker and your Honours will see that in volume 3 at page 738, about line 50, and your Honours will see then the conclusion set out at the top of the next page. Their Honours put there their views relatively briefly in the passage which follows that quotation at page 739 and in a passage which goes over to the top of page 740, and could I say two things about that.
First of all, we would submit that is a correct analysis in accordance with the existing view of the law. Secondly, one can also see Justice Badgery-Parker’s reasons which were rather fuller. They commence at page 557 in volume 3. The relevant passage is at page 599 going through to page 603. It commences at about line 39 on page 599 and your Honours will see references to Voth v Manildra and then on the next page, again passages from Voth. At the top of page 601 in the first two paragraphs the argument for the present appellants is set out. Then in the next paragraph there is something said about what Master Greenwood had said and then the argument for the plaintiffs was developed. Your Honours will see that through that paragraph. After referring on page 602 to various submissions that had been made, in the last paragraph on the page his Honour said:
I accept Mr Brabazon’s submission. The omission of the defendant to act to amend the rules cannot itself be located at any particular place but, in the words of the High Court in Voth, “it is possible to speak of the place of the act or acts of the defendant in the context of which the omission assumed significance and to identify that place as the place of the cause of complaint”. The omission to amend the rules assumed significance in this State because of the requirement of the rules that football be played in this State in accordance with their provisions.
Your Honours will see that going through to the end of that paragraph.
May I just say, your Honours, that it is possible, of course, to say that would apply wherever the game was played by one of the member associations, and it is true. But, your Honours, one might say exactly the same in respect of the drug that was the subject of Distillers.
Now, your Honours, what we would submit is that the view of the facts as to location of the tort that was - was adopted in the Court of Appeal was the correct view, and that Justice Grove was wrong in his conclusion on the facts on that issue.
McHUGH J: What do you say about the fact that the rules were in operation and it is the omission of these appellants to do anything which constitutes the tort? So it is not a question of them communicating rules, it is a question of them, being outside the country, failing to take any affirmative action.
MR JACKSON: Well, your Honour, what I say about it is this. First, taking exactly what your Honour has put to me, the fact of the matter is that there are existing rules having operation throughout the places where rugby is played by the member bodies. The omission takes place, let us assume, outside Australia somewhere. Now, your Honour, that occurs in a context where the rules are amended in various ways at various times in relation to matters involving safety. And the question of failure to amend the rules, just as much as amending the rules, has a relevant operation only where one is playing a game according to the rules as they exist and unamended. So, your Honour, if one is looking at the events there is a difference, of course, but it is not a difference which, we submit, is material.
Could I say, also, that to treat it purely as a matter of omission in that sense it is no doubt strictly accurate but, of course, what you do have is a situation where rules are being amended, where there are meetings going on and matters of that kind, and it is not as if one is just living in a situation where nothing ever happens and the complaint is that something that had never happened before should not happen again. There is a body that is, as it is said, constantly monitoring the rules. You will see, for example, that in respect of one of the injured respondents in this case there was a referee’s report, so all those sort of things would be coming to the various bodies. That is what I wanted to say on that issue, your Honours.
May I move then to a matter that was raised by your Honour the Chief Justice this morning and that is in relation to the basis for suing the various appellants. Now, your Honour referred to the statement of claim in Hyde and could I take your Honours back to that in volume 1. Your Honour was referring to paragraph 9A at the bottom of page 24 and the top of page 25. Now, the position is, if one looks at the various persons who are sued as defendants, as the first defendants, at page 17, what you will see is that in paragraph 2C on page 18 you have got, “the First Defendants” being, members of the - themselves “members of the executive or governing councils of unincorporated Member Unions of the Council of the IRFB.”
Immediately above that in paragraphs 2A and 2B you have got the other two defendants being the member – I am sorry – 2B, that is the Australian and New Zealand rugby union bodies there “were the Member Unions on the Council of the IRFB.” They were both incorporated bodies. That is pleaded in 2 and 2A.
So that what one sees, your Honours, if one goes back to 9A, is that what has been done has been to sue, on the one hand – if I could take your Honours first to paragraph (ii) at the top of page 25 – what has been done has been to sue persons who are members of the unincorporated bodies which are the members of the Board plus the two incorporated bodies. They have not sued every person who is a member of every governing body but a person from each of the member unions plus the two incorporated unions has been sued. That is basis 1.
Now, that, your Honours, is one approach. The other approach, your Honours will see, in paragraph (i), is to sue the persons who were members of the Board, as persons, in effect, saying they are the people responsible. But it takes account of, we would seek to say, in the alternative, the possible theories as to the role to be performed by the various persons. If your Honours would go to page 226 in volume 1 in Mr Ryan’s affidavit. In paragraphs 4 to 6 he seeks to explain the basis of that allegation.
Your Honours, may I return for a moment to a matter that I mentioned in passing this morning. It is just something about the liability of members of a committee. In the first place, we would submit committee members ordinarily incur joint liability for their joint conduct, for example, in relation to the employment of a servant or agent or the employment of a servant or the engagement of an agent or in relation, say, to the occupation of premises or a contract in the name of their association if the proper inference to be drawn is that the contract was to be with the committee. That is discussed – I will not take your Honours to it now – in a decision in the Court of Appeal in the United Kingdom in Bradley Egg Farm Ltd v Clifford (1943) 2 All ER 378. We have given your Honours copies of that.
If nothing more appears than the joint conduct of the committee, there really is not any need to inquire into the individual conduct of committee members in order to make the plaintiffs’ case out against each of them. But of course, individuals who are sued for their joint conduct with others may avail themselves of personal defences or may fail in their defence for reasons particular to themselves. I gave your Honours a reference to the defence of qualified privilege could be claimed by members of a committee who had jointly published defamatory matter and some might succeed, some might fail. An example of that is Egger v Viscount Chelmsford (1965) 1 QB 248. Again, we have given your Honours copies of that.
HAYNE J: But are you able to point to any authority in which members of a committee of an unincorporated association have been held responsible in negligence? You have given contractual examples and defamation examples.
MR JACKSON: I do not have one at the moment to give your Honour but, if one takes the ordinary case of occupation of a clubhouse, for example, and what used to be called occupier’s liability, in ‑ ‑ ‑
HAYNE J: But that will ordinarily be affected by the contractual relationship that exists between the committee of the club and the landlord or the committee of the club as owners, perhaps on trust for purposes or persons.
MR JACKSON: Your Honour, if one takes the case of a club, to put it neutrally, having occupation of sporting premises but for a day or for some event that takes place over some time, taking over a golf club, for example, for particular things for a week. In relation to that, the position which would be suggested, we would submit, would be that the committee of the club – and in the present case one does not really need to distinguish between, I suppose, the committee and all the members – would be the persons who would be liable in negligence. If one took, for example, the golf club example I was giving before and if it turned out that they were providing for the people who were playing golf and invited there, some buggies to go around or something of that kind, and if one of them was negligently driven by someone who was employed for the week by the club.
McHUGH J: But that may be because you could employ another agency arrangement, that one committee member is responsible for the acts of – in control of another member, but this case seems to me to be very different. This is a case about voting.
MR JACKSON: Well, your Honour, it is a case about changing rules and these people – I do not mean that offensively, let us put it that way – but these people had the ability to change the rules. Now, the way in which they had agreed amongst themselves that the rules might be changed was by voting. Now, it may well be that if you take the case of an individual – I am sorry, I might just start that one stage back. If you take the case where it was clear, for example, that the rules should have been changed to prevent something, now, in respect of that one is perfectly entitled to say, we would submit, “There are the people who have the power to change the rules. They did not change the rules. Prima facie there is negligence on their part because collectively they had the power to do it and they did not do it.”
Now, your Honour, one can then say one of two things. The first is that that should be watered down by saying that the duty is to be looked at in the case of them individually and that each one of them had no greater duty than to endeavour to do all things that were reasonable to change the rules. That is one way of looking at it and in that case, if it be that they voted to change the rules but the rules were not changed because the necessary majority could not be obtained, that person - the duty would have been satisfied and, your Honour, I suppose one looks at the duty as being to change the rules but the person had performed the duty as much – I think I said there were two ways of looking at it. There is probably only one really and some of the others might not have defence.
HAYNE J: Just while you are interrupted, Mr Jackson, on this question of duty, as I understand it, the question of duty was argued out fully below and on whatever material the parties sought to put before the court as bearing on the question of duty.
MR JACKSON: Well, the second part is right, your Honour, but could I say two things about that. The first is that involved in that, of course, is a question of what the court was doing and your Honour will see that the case that was sought to be advanced so far as we were concerned was one based on what material it had been possible to gain by, for example, discovery that produced the documents around page 110 and so on. The case was not one in which there was any attempt, in our submission, to deal with the case fully but to say there was a sufficient case to allow the matter to go on.
HAYNE J: That is, that it was not bound to fail.
MR JACKSON: Yes. And, your Honour, the other thing that I was going to say about it was: I took your Honours this morning, I think, to the passage in which the Court of Appeal recorded the fact that the question of breach was not before the court. Now, your Honour, it may be better if it had, it may be better if it had not, but that was the way the case was conducted.
Your Honours, could I go then to the question of joinder under rule 1A(1)(i). All that that requires, your Honours, is that there be persons in relation to whom the proceedings are already properly brought. Now, your Honours, in each case there are defendants who are in that category, and if I could refer your Honours to the statement of claim in the case of Hyde in volume 1, page 17, you will see that there were parties who were the Australian Rugby Football Union, New South Wales, Sydney, the Referees Associations, Gordon Rugby Club and there is no doubt that they were persons against whom the action was properly brought.
Your Honours will see if one goes to page 25 in paragraph 10:
The Second, Third and Fourth Defendants were responsible for the administration of the sport of Rugby Union in Australia and New South Wales.
If one goes to page 26 at paragraph 16 the allegation is made that:
in the alternative, the injury to the Plaintiff was caused by the negligence of the Second Defendant or of the Third Defendant or of the Fourth Defendant –
et cetera. Now, in relation to those parties, allegations are made about the making or not altering the rules and, your Honours, it is perfectly proper, of course, to sue parties in the alternative. You will see that referred to in Part 8 rule 2 of the rules. We have given your Honours copies of Part 8. I do not think I need to take your Honours to it, and all parties potentially liable should be joined.
Your Honours will have seen from Mr Wilkinson’s affidavit that he referred to – and this is at page 157 – the fact that:
The rules or laws of the game of rugby are as set down by the International Rugby Board –
Now, our learned friends say none of the defences say directly that the people who were in the Australian unions did not have power to make the rules but, if one goes to those defences, your Honours will see that they do not really, on this issue, say a lot at all.
If I could give your Honours one of them, because they seem to be pretty much in common form, at page 38 in volume 1, the defence of the Australian Rugby Union, the relevant paragraph is paragraph 16 of the statement of claim and that is referred to in paragraph 2 of the defence at page 38. It simply says that the allegations are denied. Then, your Honours, you will see in paragraph 3:
In answer to the whole of the further amended statement of claim the second defendant denies that any duty of care by it arose in relation to the plaintiff or was capable of arising in the circumstances pleaded.
Then if one goes to paragraph 6 on page 39:
The second defendant denies that any act or omission on its part in any way caused injuries to the plaintiff.
Now, your Honours, there is nothing at all to suggest that the question of the rule-making power or in whom it reposes would not be raised.
Your Honours could I come then ‑ ‑ ‑
HAYNE J: Before you leave (i), can I ask you a question about the construction of it. It speaks of:
proceedings…..properly brought against a person served or to be served” –
and proper joinder.
MR JACKSON: Yes, your Honour.
HAYNE J: It is the first use of “properly” that I invite attention to. When it speaks of proceedings “properly brought”, but then goes on to say “against a person served in the State”, is that paragraph inviting attention only to the question of assumption of jurisdiction, or is it inviting attention to the quality of the action or its likely chance of success when it says “properly brought”?
MR JACKSON: Your Honour, it would be pleasant but difficult to take entirely the narrower view. May I indicate why I say that. There would seem no particular reason why if one took the case of a proceeding that was instituted, but again to take - if there was a statute of New South Wales that said you could not bring such a proceeding, and let us say that the action that was brought was an action brought against a State official when there was a statute that said no such action could be brought against a State official, it had to be brought against the State of New South Wales, eo nomine. Those proceedings were ones in which it was sought to sue someone with whom it was said to be in a conspiracy, for example.
Now, your Honours, there would seem no particular difficulty in saying that it would be impossible to describe those proceedings as being properly brought. The concept, the provision, does seem to allow of the possibility that one can look at the proceeding in (b). But one is looking at the proceeding really to see whether it is a proceeding which is properly brought in the sense of brought in the way, contemplated by the rules on the one hand and one to which there is not some defence that would blow it out of the water, as it were, your Honour.
Your Honours, could I come then to the question of the limitation period? Your Honour, there are two questions that arise. One being the issue raised by my learned friend this morning and the other being the matters already raised in the appeal. Your Honour, I am conscious of the time, if the Court is happy to, I would be prepared to put submissions on both those aspects in writing.
GLEESON CJ: Yes, thank you, Mr Jackson.
MR JACKSON: May I say one thing about it before moving on, however, and it is this. Your Honour, perhaps two things. The first is that there has not been reference made by my learned friends to section 68A of the Limitation Act, and section 68A is the provision which says in subsection (1) that:
Where in proceedings before a judicial tribunal a question arises as to extinction…..a party…..shall not have the benefit in those proceedings of any such extinction of that right…..unless, as part of the proceedings, he has pleaded or otherwise appropriately claimed in accordance with the procedures of the tribunal…..has been so extinguished.
The second is that the proceedings are those in which a court can decide the question whether they have or have not been extinguished. What we would be seeking to say is that until the decision is made in the proceedings, that has the effect that the extinction has not occurred. The second thing, your Honours, we would seek to say is this, that, really, this is a case where all the evidence was in before Justice Grove before there was any suggestion by our learned friends that there be a bifurcated hearing. It was during the addresses that that occurred.
Now, your Honours, on the question of discretion, could I refer to our written submissions at page 17? Your Honours, we have set out at the bottom of page 17, and again at pages 18 and 19, our submissions on this. Could I make a couple of points in relation to it?
If it be the right view that the cause of action accrued and the tort occurred in New South Wales then, we would submit, it is a plain case for the case to be heard here. These are people who are badly injured. There is no doubt they could travel but there are difficulty in people in their condition travelling as freely as others. It is a case where, as we say, the damage occurred in New South Wales and the case is one where there is no particular magic, in our submission, in the place where the rules were made. Your Honours have seen there were already a number of places where the rules were made and the meetings held, Cardiff, Edinburgh, I think London and I think in Paris somewhere.
So, the position which obtains, in our submission, is that you simply have a case where the bodies or the persons who are – the body or the persons on the body are people who come from, in any event, around the world. The bodies that constitute the Board are bodies which exist both in the northern hemisphere and the southern hemisphere and the game is played in many different parts of the word. What we would seek to say is that one is not really just looking at people who are individuals but people who are individuals, at least in one sense, representing bodies that are international in the sense of covering a large number of countries. Subject to the question of putting in those written submissions, those are our submissions, in addition to our written submissions, of course.
GLEESON CJ: Thank you, Mr Jackson. Yes, Mr Deakin.
MR DEAKIN: Your Honour, could we correct what my learned friend did say about the bifurcated hearing? It is correctly recorded by his Honour at page 652 of the appeal book. What actually happened in relation to it, if it was not an application made at the conclusion of the hearing, it was made at the outset, and that is what his Honour records at line 14:
At the outset of hearing I declined to “bifurcate” –
the hearing, and it is quite wrong to suggest that it occurred at a later point in time. Dealing with the position of unincorporated associations, we regret to say that we did not provide these authorities to your Honours, but could we give your Honours a reference to a textbook described as “Unincorporated Associations Law and Practice” by Warburton in which in chapter 8 the learned author says, on page 80 of the 1992 edition of the book:
An individual has no liability arising automatically from his membership of an association.
They are talking about unincorporated associations, of course:
A member will only be liable if he actually caused the breach of duty in question.
GUMMOW J: Any authority for that?
MR DEAKIN: And the authority cited for that proposition is the decision of Baker v Jones (1954) 1 WLR 1005. It was a decision involving a single justice decision by Justice Lynskey. It was a decision involving a dispute within a weight lifting association, unincorporated body, as to actions taken by particular members of the unincorporated body with funds of the association and at page 1011 in the judgment of Lynskey J his Honour says:
The association, being an unincorporated body, could not be liable for the tortious acts either of its officials or council members. The members of the association, individually, would not be liable for such tortious acts, except in so far as they had individually authorized such acts.
And we would submit that statement of principle is squarely applicable to this case. It is touched on in two later authorities that we were able to locate, each dealing with different factual circumstances obviously in no way comparable to anything in this case, but in Healey v Ballarat East Bowling Club (1961) VR 206 in the judgment of Gavan Duffy J at 208 and, again, in the Attorney‑General for Victoria v The City of Brighton (1964) VR 59 in the judgment of Justice Gowans at pages 62 to 63.
GUMMOW J: That is a charitable trust case. It may be none the worse for it.
MR DEAKIN: Yes. We did look at them but I have not unfortunately brought them ‑ ‑ ‑
GUMMOW J: So it is (1964) VR 59 at what page?
MR DEAKIN: At 62 to 63. So the principle, we submit, extracted from those authorities is that individual members of an unincorporated association are only liable in tort to the extent of their personal responsibility for the commission of such torts and we would read the defamation case that my learned friend has handed up, the Egger matter, establishing something to similar effect.
Could we say one other matter. My learned friend did take your Honours to documents which came into existence after this accident in 1988, they being those various documents from pages 110 onwards. Could we draw your Honours’ attention to one matter that does emerge from those documents that my learned friend did allude to. At 113 your Honours see that it refers to alterations made by the International Rugby Football Board. At line 55 on 113:
These changes shall be implemented as at the 1st September, 1988 and following the end of the Southern Hemisphere playing season.
If your Honours look further up the page at line 33:
*(a) Further requirements in the formation of a scrummage in order to minimise the force of impact.
If your Honours then turn to the next page of the document, your Honours see an asterisk recording the fact that:
(* This law was adopted in Australia at the commencement of the 1988 Season)
So that, although the International Rugby Football Board did not promulgate it to take effect until September of 1988, the Australian Rugby Union commenced it at the beginning of that season. So again, we would rely upon that in support of what we put, that there was nothing to stop the Australian Rugby Football Union from changing the laws of the game as the plaintiffs have alleged against it.
The only other matter - your Honour Justice McHugh did say to my learned friend – and I know your Honour was not intending to summarise the case in any way, but I think your Honour may have referred to the high point of the plaintiffs’ case being that if there had been a law requiring crouching and only being at arm’s length, then this accident would not have happened. I was just hopeful that your Honour was not intending by that question to say that that was the proposed law because that was the law at the time of these accidents.
That is what is recorded in the appeal book at 399 which required packs, before commencing engagement, to be in a crouched position not more than one arm’s length from the opponents shoulders and then prohibited the charging. So, I am not sure your Honour did intend that ‑ ‑ ‑
McHUGH J: No. If that is what I said, it was not exhaustive. I thought I mentioned the question of pause ‑ ‑ ‑
MR DEAKIN: Yes, the pause, I think your Honour was correct, it was new, but your Honour did actually refer to crouching and more than an arms length and under the rules as they existed at the time of these accidents, that was the correct procedure laid down.
GLEESON CJ: Thank you, Mr Deakin. We will reserve our decision in this matter and we will adjourn to reconstitute in Court No 2.
AT 2.46 PM THE MATTER WAS ADJOURNED
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