Airservices v Zarb

[1999] HCATrans 120

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S134 of 1998

B e t w e e n -

AIRSERVICES AUSTRALIA

Applicant

and

CARMEN ZARB

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 MAY 1999, AT 2.12 PM

Copyright in the High Court of Australia

MR A.J. SULLIVAN, QC:   May it please the Court, I appear with my learned friend, MS L. McCALLUM, for the applicant.  (instructed by Corrs Chambers Westgarth)

MR P.C.B. SEMMLER, QC:   May it please the Court, I appear with my learned friend, MR N.J. MULLANY,  for the respondent.  (instructed by MF Twemlow & Co)

GLEESON CJ:   Yes, Mr Sullivan.

MR SULLIVAN:   Your Honours, decisions as to the determination as to where airports should be, or the paths or corridors at which aeroplanes will fly into their airports are, in our respectful submission, matters which are at the core area of the planning or policy functions of a government or a government agency to whom the government entrusts such matters.

The issue which is in determination in this Court on this application, and indeed was in issue in the courts below, is whether a civil action for damages lies in respect of such decisions.

HAYNE J:   Or is it rather whether it is arguable that a civil action lies?

MR SULLIVAN:   Your Honour is more accurate, with respect.  The question is whether it is arguable.  Our submissions which we wish to develop is that it is clear that whatever be the situation at what might be called the borderlines of a distinction which has been somewhat criticised, the policy operational area, where something is within the core area of planning or policy the law is plain and that is, to use the words of Justice Gummow in Pyrenees, where he cast doubt on the policy operational distinction but referred with approval to what was said by his Honour Justice Deane in Heyman, that the law of tort does not recognise such a course of action.

The very nature of these decisions, your Honours, is most easily revealed by two events which occurred and are recounted in the application book at page 38 of his Honour Justice Powell’s judgment.  The first of those - at page 36 an example is given by his Honour of the fact that the flight corridor regulations came into force in 1994 which effectively required air traffic controllers to use, and only use, certain flight corridors in respect of runways at Sydney Airport.  There was a change of government, as your Honours will know, in March 1996 and, following that, as appears at page 38 of the application book, the Minister, as he was entitled to do under the relevant legislation, gave a directive which, under the legislation, Airservices Australia was obliged to comply with, requiring greater use of a runway known as the East West runway.  Your Honours will recall that at Sydney Airport, until 1994, there was a runway commonly called the North South runway and another called the East West runway which intercepted with it, and then a third runway, roughly parallel to the existing North South runway, was opened in 1994.

At pages 38 to 39 of his Honour’s judgment, Justice Powell then sets out the media statement released by the Minister for Transport which explained the reason for the directive.  It was to fulfil an election promise of the then Leader of the Opposition, Mr Howard.

HAYNE J:   Let all that be assumed, is not the principal difficulty you confront in this application that it is an application to strike out a pleading, perhaps summarily determine an action, before any evidence has been heard?

MR SULLIVAN:   It is, your Honour.

HAYNE J:   Why should this Court embark on a discussion or consideration of the, perhaps, difficult issues of principle that are raised without benefit of trial and findings of fact?

MR SULLIVAN:   Two reasons we would submit why that should occur, your Honour.  First, we would respectfully submit that this is manifestly a case of a policy decision at the core area of policy or planning ‑ ‑ ‑

GLEESON CJ:   Is that so?  Look, for example, at one of the particulars on breach of duty on page 42, failure to warn; failure to warn that something was going to affect the plaintiff’s hearing.  How is that a matter of policy?

MR SULLIVAN:   Your Honour, in our respectful submission, in respect to the failure to warn allegation, if the decision as to what flight paths are to be adopted is not one in which a duty of care is owed to prevent harm, quite obviously, in our respectful submission, you cannot have a duty of care to warn against something of which you have no legal duty.

GLEESON CJ:   But that could depend on the facts and circumstances.  That is one of the examples of the difficulty of dealing with a question like this, as it were, in the abstract.  If we took this case on and dealt with it on the pleadings, we would have somebody saying to us, there you are, there is an allegation of a duty to warn and a breach of a duty to warn.  And you know nothing about the facts and circumstances that might lie behind those allegations.

MR SULLIVAN:   But, your Honours, first of all we would respectfully submit there are two answers, with great respect.  One, there is evidence here which was not contradicted.  It was, in answer to your Honour Justice Hayne, an application for summary dismissal, not for a strike out.  Secondly, there was uncontradicted, unchallenged evidence put on by Mr Sims in an affidavit as to the reasons and how and why these flight paths were designed in the way they were.  The respondent plaintiff just chose not to put on any evidence herself.

The second reasons is, your Honours, in an appropriate case this Court, for instance in Esanda, the House of Lords in Carparo, has said where an important point of principle arises and where one is content to take the facts as asserted by the plaintiff in a statement of claim and say, we say that on those facts, assume they will be proved, that it is not justiciable.  And this is what we say is the relevant situation here. 

The application is brought for the obvious purpose of avoiding what could be a long, drawn out, lengthy and expensive piece of litigation for all concerned which, we submit, can be resolved as a matter of principle without the difficulties which your Honour Justice Hayne adverted to.  Whilst we concede readily, your Honour, that there has been a criticism of the policy operational distinction, and indeed your Honour Justice Hayne in the Romeo Case preferred to leave the question open, the point of the matter is, in our respectful submission, that no one has ever suggested that at core planning or policy areas these decisions can be impugned.  Indeed, the tenancy in other jurisdictions, such as the United States, is to extend the immunity, rather than to confine it.

GLEESON CJ:   Mr Sullivan, could I just get one thing clear.  I think I know the answer to this but I just want to check up on it.  The case has been conducted so far on an acceptance by both sides of the principles in General Steel, is that right?

MR SULLIVAN:   Yes, your Honour.

GLEESON CJ:   And there is no challenge to those principles?

MR SULLIVAN:   No, your Honour, no, there is not.  We say, however, that applying the General Steel test, your Honours can be – it is easier for an applicant to satisfy that demanding test where it is a summary disposal application as opposed to a strike-out matter, because there is evidence before the Court it is not considering the matter in an evidentiary vacuum.  So that although the test remains the same, according to pronouncements of this Court in cases such as Webster v Lampard Case, in our respectful submission, the fact that there is evidence before the Court makes no more suitable vehicle than if it had been simply an application to strike out on the pleadings.

GLEESON CJ:   What are the facts relevant to consideration of an allegation that there was a duty which embraced a duty to warn the plaintiff that there was going to be a sudden and substantial increase in noise over her dwelling house and failure to warn?  You say you can dispose of that contention simply by reference to the nature of the functions carried out by your client.

MR SULLIVAN:   Your Honour, there are two answers to it.  One, we say, yes, with respect, you can dispose of it, if there is no duty of care to prevent harm in respect of these decisions.

HAYNE J:   How does one determine that in face of paragraph 4 as reproduced at page 42, a paragraph that on its face might seem a little lacking in specificity of the grounds that give rise to the duty?

MR SULLIVAN:   It does, your Honour.

HAYNE J:   Then is the plaintiff to be confined in some way to the way in which she puts this allegation of duty; if so, how?

MR SULLIVAN:   Your Honour, we say that one reads paragraph 4 in the light of the allegations made in paragraph 2 of the statement of claim which is set out at page 42 because there the plaintiff describes the duties in respect of which she alleges a duty of care is owed.  We say ‑ ‑ ‑

HAYNE J:   You would have us determine this, not on any deficiency of pleading, but you would have us say this is untenable, this allegation of duty?

MR SULLIVAN:   Yes, your Honour, that is what we would have you do.

HAYNE J:   How is the duty founded?

MR SULLIVAN:   The duty is founded, your Honour, by the allegation that by reason of the responsibility which the plaintiff asserts the defendant had for the matters set forth in paragraph 2 of the statement of claim, that gave rise to a duty of care.  We respectfully submit that even if one accepts the 100 per cent correctness of what the plaintiff says in paragraphs 2 and 4 of the statement of claim, those paragraphs reveal a pure planning or policy activity being engaged in on behalf of the government by the government agency such as which courts in this country and, indeed, everywhere else in the common law world, in our respectful submission, would not countenance being recognised by the law of tort.

In answer to the Chief Justice, I gave your Honour the first answer which we would say to the duty to warn aspect.  The second aspect is, your Honour, when one examines the failure to warn allegation, the failure to warn allegation is a specific one introduced upon the opening of the third runway.  The evidence which is before the Court showed – and indeed the trial judge alluded to this – that the opening of the third runway would alleviate the plaintiff’s problems, rather than exacerbate the problems, because the plaintiff’s house was located directly on the approach to the old North South runway, with the result that if the two runways were opened, with great respect, rather than increasing any risk to her health, by definition, it would have to mitigate it because there would be a dilution of aircraft noise going over the plaintiff’s house.  So, with respect, they are the ways we respectfully submit to your Honours that the duty to warn issue can be completely argued and dealt with by this Court on this application.

Your Honours, we respectfully submit that what Sir Anthony Mason and what Justice Deane and what Sir Harry Gibbs all said in Heyman is still the law in this country, at least in that area which is clearly of a policy nature at the core or, as Justice Deane says, quasi-legislative in nature.  So held the Full Federal Court in the Bienke Case, upholding the decision of the trial judge, who was Justice Gummow as a member of the Federal Court.  In the United States in Gaubert the United States Supreme Court has extended the immunity by saying, “We are abandoning the operational policy distinction, but we are abandoning it by extending the immunity to say that even operational decisions which are discretionary are the subject of the immunity”.  In Canada, in a series of cases, culminating in the case of Lewis in 1997, the Supreme Court has consistently and expressly applied the language and comments of Mr Justice Mason, as he then was, in the Heyman Case.

In our respectful submission, the law is clear that, at least in respect of this type of activity, a civil action in tort is not recognised by it.  Because the law is clear, in our respectful submission, and because there are sufficient facts before the Court to enable it to determine that matter, this is a case, one of those rare cases, where the General Steel test is satisfied.  In our respectful submission, it is an appropriate vehicle for the resolution of these issues, which are clearly of general public importance, by this Court. 

Your Honours, unless I can assist you further, they are our submissions.

GLEESON CJ:   Where can I pick up a reference to General Steel?

MR SULLIVAN:   It is referred to in Judge Mahoney’s judgment, your Honour.  It is at page 11, line 6, your Honour, there is a reference to General Steel.

GLEESON CJ:   Thank you.  We do not need to hear you, Mr Semmler.

In the courts below this case was conducted by both sides on the basis that the principles enunciated in General Steel Industries v The Commissioner of Railways 112 CLR 125 were those that would determine the outcome of the case. Senior counsel for the applicant has acknowledged that it would be no part of his case if leave were granted to appeal to seek to challenge the formulation of principles in General Steel.  Bearing in mind that those were the principles accepted to be applicable, the majority in the Court of Appeal declined to accept the submission that the present was a case warranting summary dismissal.  The case is not a suitable vehicle for a consideration by this Court of the principles sought to be agitated by the applicant and the application for special leave to appeal should be refused.

Can you resist costs?

MR SULLIVAN:   No, your Honour.

GLEESON CJ:   The applicant must pay the respondent’s costs of the application.

We will adjourn to reconstitute.

AT 2.29 PM THE MATTER WAS CONCLUDED