Amaca Pty Ltd v State of NSW & Anor

[2003] HCATrans 725

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S389 of 2002

B e t w e e n -

AMACA PTY LIMITED (formerly known as JAMES HARDIE & COY PTY LIMITED)

Appellant

and

THE STATE OF NEW SOUTH WALES

First Respondent

ROLLS ROYCE INDUSTRIAL POWER (PACIFIC) LIMITED (formerly JOHN THOMPSON (AUSTRALIA) PTY LIMITED)

Second Respondent

McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 29 MAY 2003, AT 10.17 AM

Copyright in the High Court of Australia

__________________

MR F.M. DOUGLAS, QC:   May it please the Court, I appear with my learned friends, MR G.M. WATSON, SC and MR T.G.R. PARKER, for the appellant.  (instructed by Allens Arthur Robinson)

MR J.M. IRELAND, QC:   If the Court pleases, I appear with my learned friend, MR J.F. BURN, on behalf of the first respondent, the State of New South Wales.  (instructed by Crown Solicitor for New South Wales)

McHUGH J:   The Deputy Registrar has certified that he has been informed by the solicitor for the second respondent, Rolls Royce Industrial Power (Pacific) Limited (formerly John Thompson (Australia) Pty Limited), that the second respondent shall not take an active part in the appeal.  Mr Douglas, you oppose the hearing of the notice of the contention, the matters in that, I take it?

MR DOUGLAS:   We say it is not a suitable vehicle to determine the issues raised by it.

McHUGH J:   Yes.  Mr Ireland, if the appeal is otherwise successful, why should this Court involve itself with the matters raised in the notice of contention?  It would require this Court to examine for itself six volumes of evidence, I think, from recollection.

MR IRELAND:   Only this, your Honour, that the appeal which lay to the Court of Appeal lay in point of law.  There can be no factual challenge either in that court or in this Court.

McHUGH J:   Well, I appreciate that, but in determining whether there is a duty one has to examine all the material, does one not?  Duty is a question of law and there is an assumption of duty, but there is no finding.  I mean, the time of the Court cannot be taken up with doing really what was the Court of Appeal’s task, if the Court of Appeal is wrong on this other point, and then there is a further problem that paragraph 4 of your submissions on the notice of contention assert that we should:

entertain and determine the existence or otherwise of a duty of care but that the issue of breach (if it arises) is apt for remitter to the Court of Appeal for further determination.

That seems to come very close to saying that your notice of contention is not really seeking to support the orders actually pronounced by the Court of Appeal.  You are going back to what anterior ‑ ‑ ‑

MR IRELAND:   Not really, your Honour.  The issue is duty is decisive.  If there was no duty there was not tortfeasor, and the case falls away.

McHUGH J:   Well, exactly.  And one would have thought that the first thing that had to be decided in this case was whether the State of New South Wales was a tortfeasor.  If it was, to what extent did it breach its duty?  It is only by a relative weighing of the two matters that one can make any determination as to whether there should be any contribution and if so, how much.  I must say, with great respect, reading the judgments I am inclined at the moment to agree with Justice Gaudron.  This is a very curious set of reasons we have to deal with.  Reading your submissions on the appeal, Mr Ireland, I got the impression you did not have a great deal of confidence in supporting them.

MR IRELAND:   Your Honour, the interesting thing about the point - we are now straying of course into the first point.

McHUGH J:   Yes, I know.

MR IRELAND:   I do not know if your Honour is calling on me now to deal with that.

McHUGH J:   No, no.

MR IRELAND:   Or this is just a preliminary canter.  To the extent it is, I have great faith in our submissions, your Honour ‑ ‑ ‑

McHUGH J:   I only mention it because it seemed to me that your real point in defending what has happened here is really the “no duty” point and maybe ‑ ‑ ‑

MR IRELAND:   That is the one that your Honours are inclined not to let me sustain here.  So I do not really want to embrace that dilemma either.  But, your Honour, we certainly say that an assumption of duty to the fullest degree possible coupled with the findings of fact was far and away enough to engage the discretionary exercise under section 5.  This point which my learned friend now makes by special leave was so promising that it was not

even put to the Court of Appeal.  It came as a surprise during the course of the special leave applications, and not from this side of the Bar table.

McHUGH J:   The Court is of the view that if the appeal succeeds, it should not deal with the notice of contention.  It would be appropriate, however, at some stage for counsel to submit whether, in the event that the appeal was allowed, the matter should be remitted to the Court of Appeal, which would appear to be the proper course, or whether it should be sent to the Dust Diseases Tribunal, as Mr Douglas seems to assert in his submissions.  Yes, Mr Douglas.

MR DOUGLAS:    Just to enter into the argument which took place before, your Honours, the appeal book at page 162 does indicate that we sought to sustain Judge Curtis’s treatment of a question of breach of duty on the basis that his findings were sufficient to sustain a finding of liability against the State, but obviously it did not ever really get to the point in his Honour’s judgment of there being a finding of actual breach.  He dealt with the matter on a hypothetical basis.

Your Honours, if I could then just go to our submissions.  The issue which arises in the appeal is whether a court may dismiss a claim for contribution against an alleged tortfeasor under section 5(1)(c) of the Law Reform Act by relying upon the power of exemption under section 5(2) of the Act.  We do raise two further issues on our appeal.  We are not sure whether the Court wishes to entertain those submissions or not, bearing in mind the status of the fact finding down below.  The first of those issues which we seek to raise in set out in paragraph 4 of our written submissions, which is whether the Court is entitled under section 5(2) of the Act to grant an exemption when both tortfeasors are independently at fault.

GUMMOW J:   I am sorry, where are you reading from, Mr Douglas?

MR DOUGLAS:   Paragraph 4(a), your Honour.  Then, flowing on from that, because his Honour expressed some reasons towards the end of his judgment that seemed to suggest that the ‑ ‑ ‑

GUMMOW J:   At the moment that is a hypothetical question.

MR DOUGLAS:   That is what I was alluding to, your Honour.

GUMMOW J:   Yes.

MR DOUGLAS:   Then the other matter, his Honour has said effectively that he would not make an order for contribution against the State of New South Wales because it was a public entity, as distinct from being a private citizen.  That is an issue which is not altogether hypothetical because it is something which the judge has indicated he would not do because of the status of the entity in question and that would seem to us to be contrary to the provisions of the Act which are ‑ ‑ ‑

McHUGH J:   But the first question in the appeal is, is it not, whether the Court can consider the question of contribution without determining that a party is a tortfeasor and the extent of its breaches?

MR DOUGLAS:   Yes, your Honour, and that arises from the actual statutory language because its contribution is to be the amount which is just and equitable, having regard to the extent of that person’s responsibility for the damage, so it actually flows from the statute.  So, unless you actually have formed a view as to the extent of that person’s responsibility for the damage, one cannot possibly embark upon the exercise of determining whether it is just and equitable, whether there should be an exemption or whether there should be a complete indemnity, and so that is a short point.

The matters of fact and law which are set out in our submissions up to paragraph 23 are not controverted by my learned friend and so, really, it is the commencement of our submissions at paragraph 24 where we set out that our essential complaint is that both the trial judge and the Court of Appeal elected to deal with the claim against the State by taking a shortcut.  An assumption was made that the State was liable and the matter was dealt with as a question of whether it should be exempted.

It may be conceded, we say, in certain circumstances.  It is not the duty of a court to decide every matter which is raised in argument.  Sometimes a court may decide a case in a way which does not require the determination of a particular submission, or may, as Lord Scarman once said, salute it in passing.  A number of cases are referred to.  But because of the statutory language which we are dealing with here, one has to in fact at least make the findings of duty and breach before one embarks upon the statutory task under section 5.  In Podrebersek we cite from the judgment of the Court to the effect that: 

The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage . . . It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.

GUMMOW J:   Well, 5(1)(c) is the relevant starting point, is it not? 

MR DOUGLAS:   It is, your Honour, yes. 

GUMMOW J:   So it is a condition precedent, if you like, for the exercise of the powers under subsection (2) that you have paragraph (c) satisfied.  So you have to have a tortfeasor liable and another tortfeasor who is or would, if sued, have been liable. 

MR DOUGLAS:   Exactly, your Honour.

GUMMOW J:   And that did not exist here. 

MR DOUGLAS:   No. 

GUMMOW J:   There is no determination of that. 

MR DOUGLAS:   There is no determination of that, your Honour. 

GUMMOW J:   So subsection (2) is not enlivened. 

MR DOUGLAS:   Not until that finding is made, no.  It is, I think, almost as simple as that.  We refer to Justice Hayne’s judgment in Wynbergen in relation to contributory negligence ‑ ‑ ‑

GUMMOW J:   That is on a different section. 

MR DOUGLAS:   On a different section, but it does use the same words of ‑ ‑ ‑

HAYNE J:   You say it is almost as simple as that?  What is the further complication?  Is it not that, period, Mr Douglas?

MR DOUGLAS:   It is that, that is the point, your Honour.  Our submissions go on to deal with the other two points which we have raised, but I think really it would be taking up the time of the Court.

McHUGH J:   Yes, Mr Ireland, we might hear from you.

MR IRELAND:   Thank you, your Honour.  This first point, as Justice Gummow said, concentrates on the mechanism of section 5.  The preconditions are section 5(1)(c) that there be a:

tort-feasor liable –

that is James Hardie or AMACA, the appellant - that he can:

recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage –

those are the critical words.

The centre of our submission is that it is not indispensable to the application of that section that there be a determination in the contribution proceedings by the judge of the liability of the putative second tortfeasor so long as there is one of three things.  There may be a concession, for example.  If it was conceded at trial that the party against whom contribution was sought was liable to the plaintiff, then the judge could go on to determine upon that concession by reference to ‑ ‑ ‑

GUMMOW J:   It would depend upon the detail of the concession.

MR IRELAND:   Yes, it would.

McHUGH J:   You would have to concede your responsibility for the damage, would you not?

MR IRELAND:   That is so, your Honour, yes, I accept that position.  Just as in Seltsam’s Case, we are dealing with an issue where there had been a consent judgment.  Your Honours remember the consent judgment in that case was given in the absence of the claim of contribution.  The question then arose whether when the plaintiff dealt with the defendant in the contribution proceedings without privity in that settlement on the part of the claimant for contribution, whether that nevertheless bound the claimant to the issue of the liability as a tortfeasor.  So there will be a range of circumstances ‑ ‑ ‑

GUMMOW J:   That was one, one was concession.  What are the other ones?

MR IRELAND:   Consent judgment, that is two.

GUMMOW J:   Yes.

MR IRELAND:   The third is this case, assumption.  What is being criticised ‑ ‑ ‑

GUMMOW J:   Sorry, the third is?

MR IRELAND:   An assumption by the trial judge in the course of the contribution proceedings ‑ and this is decisive from my point of view – but coupled with sufficient findings of fact to bear on the issue for determination which is not liability but what the section calls responsibility.

HAYNE J:   So assumption of what?

MR IRELAND:   Liability.

HAYNE J:   What exactly is assumed?

MR IRELAND:   What is assumed is that the defendant in the contribution proceedings is liable to the plaintiff and then one has to go on, of course, in negligence, relevantly, in this case.  That is assumed, just as it is conceded in my first example and concluded against the defendant in my second example as in Seltsam.

So what then has to be concentrated on - and absent, as I think Justice McHugh began to say, you would need more than simply a bare admission.  There would have to be an assumption of responsibility.  Responsibility is not liability, responsibility of the factual matters that bear on the weighing of the issue of relative culpability and the causation of the damage.  That is a non-technical question depending on issues of fact, as in this case Judge Curtis in the Dust Diseases Tribunal laid out extensively.

If I could take your Honours, if I may, to the useful summary of those factors in the Court of Appeal’s decision.  It is at the second volume of the blue appeal book.  It starts at 277.

McHUGH J:   Paragraph 144, is it?

MR IRELAND:   Paragraph 144, yes, your Honour.

GUMMOW J:   It is also reported in 55 NSWLR 626.

McHUGH J:   53, I think.

MR IRELAND:   Yes, your Honour.  Should I go to the appeal book or should I ‑ ‑ ‑

GUMMOW J:   No.  What paragraph?

MR IRELAND:   I am sorry, your Honour, paragraph 144.

GUMMOW J:   Thank you.

MR IRELAND:   It will be remembered that in this case at the conclusion of the trial judge’s decision there was a short passage which is complained of separately on the third point, but there is a short passage in which his Honour dealt with the decision on contribution to exempt the State from liability.  It is common ground that that was upon an assumption of liability.  But what was necessary in this case for that power to be invoked, the precondition to the exercise of the discretion in section 5, was a finding of responsibility, and that was replete in this case.  In paragraph 144 Justice Stein in the Court of Appeal sets out the matters which his Honour must have taken into account in ‑ ‑ ‑

McHUGH J:   Well, that itself creates a problem.  He assumes that he took them into account.  How do we know?  The judge certainly did not say he did.

MR IRELAND:   Your Honour, turning to that question, which is connected with what would be the third point on the appeal ‑ ‑ ‑

KIRBY J:   Justice Stein said he must have taken them into account.

HAYNE J:   And the matters he says must have been taken into account concern Hardie’s conduct not the State’s.

MR IRELAND:   That is so.

HAYNE J:   What assumption is made, if any, about how the State was responsible?

MR IRELAND:   That again is a question which is identified by the Court of Appeal ‑ ‑ ‑

McHUGH J:   The very decision of his Honour almost demonstrates that he cannot have directed his mind to the proper issues.  I am talking about the trial judge.  Assuming against you that you did owe a duty, arguably, your responsibility would be greater than Hardie’s.  The very purpose of conferring power such as this on the State and its agents is because people such as employers do not protect workers and the public interest requires that those risks should be eliminated.

MR IRELAND:   Your Honour, there is a fluctuating view in this Court about that, to the extent that public authorities are ‑ ‑ ‑

McHUGH J:   No, I am assuming - you may well be right that there is no duty, Mr Ireland – that is another question altogether – but if the trial judge found that the inspectors are there week after week and they do nothing and they allow this to develop, after all in the old contributory negligence terminology it is a last opportunity.  Hardie’s fault lies in not giving warnings, not bringing home, et cetera, to those affected the risks, but you are there after Hardie’s negligence.

MR IRELAND:   Well, that is a rather skewed simplification of the facts.

McHUGH J:   It may be, but I am just saying at the worst ‑ ‑ ‑

MR IRELAND:   Hardie’s culpability lies into projecting for commercial gain into building sites a product it knows to be dangerous, deliberately refraining from giving warnings so it will not affect its market.  That is the finding in the case.

McHUGH J:   Yes.

MR IRELAND:   It is not that it is not there trying to stop the builders of the power station from making a lot of dust.  The central finding of culpability against Hardie is that:  a reckless and cynical projection into the marketplace, on his Honour’s findings, of toxic material, withholding from the people who ought to have been told what the risks were.

The essence of the culpability of the State is that it did not in action.  This is not a case like Pyrenees of unfinished business, as we have said in our written submissions.  The culpability of the State was that there were DLI inspectors who had, on his Honour’s findings, not challenged in the Court of Appeal, pursuant to the Oceanic principle, an independent statutory duty not controllable by the Minister, so there is no vicarious responsibility for what they do.

McHUGH J:   That, again, indicates perhaps error in the particular case because unlike cases like Unver or Oceanic you are not being sued for the negligent exercise of a statutory power or a common law duty that is discretionary.  The breach here is a breach of a common law duty and it is part of that duty that the inspectors have statutory powers and it may be arguable that Oceanic has nothing to do with it, but quite apart from that ‑ ‑ ‑

MR IRELAND:   The day has passed for that, with respect.  That is what the trial judge said and it was not challenged in the Court of Appeal.  The Court of Appeal was not asked to deal with that issue.  That is for another case, not this one.

McHUGH J:   I understood from Mr Douglas’ submissions that this whole issue ‑ ‑ ‑

MR IRELAND:   No.  What he wants to still say is although the Oceanic principle protects the State from a conventional liability, as in the master/servant vicarious responsibility or principal agent responsibility, that is accepted on the other side.  What they say is that that the knowledge that these independently appointed under statute inspectors gained should be aggregated with all other knowledge in the State on the issue of duty.  That is what they say.

McHUGH J:   Yes.

CALLINAN J:   Mr Ireland, I must say I do not have any view at all about the ultimate outcome of a question of liability of the State.  I have no view at all, but that does not answer the difficulty that has arisen.  The Court of Appeal did not deal with it.  But I would not like it to be assumed, so far as I am concerned in any event, that there is any view about the State’s ultimate ‑ ‑ ‑

MR IRELAND:   I was going to refer to – I mean, this is not the occasion in light of the Court’s first ruling to debate the duty question.  That is occasion for another day.

McHUGH J:   No, but without determining the duty, without determining what the breach and what it was and weighing it all up ‑ ‑ ‑

MR IRELAND:   Can I just say this, your Honour.  That is the conventional way of doing it but once one accepts, as one has to accept, that shortcuts can be taken in the sense that one does not have to litigate the issue of duty, that can be conceded or established by consent judgment with the plaintiff in another action.

McHUGH J:   Yes.

MR IRELAND:   Once that position is reached, once you realise that, it means that ‑ ‑ ‑

GUMMOW J:   When you say by those two parties, what we said in Seltsam was that the third party would have a right to be heard on any such consent application.

MR IRELAND:   To put its hand up, yes, and that did not happen in that case.

GUMMOW J:   Quite, and you would not have consent here.

MR IRELAND:   I am sorry, your Honour.

GUMMOW J:   There is no question of consent here.  It is all very lively.

MR IRELAND:   No, because of the order of – but, your Honour, that does not deny the principle.  My simple point is this – and I think it comes to terms at least to the extent I can with what is being said about the mechanism of this section – when it talks about responsibility it is looking at conduct conventionally regarded as conduct going to causation and culpability.  This case is full of factual findings which his Honour made about the relative culpability and the relative conduct of the two parties.  The Court of Appeal could not review those questions of fact because section 32 of the Dust Diseases Act as it applied confined the Court of Appeal on the Azzopardi principle to a challenge in point of law.  The facts were on the table, the judge ‑ ‑ ‑

GUMMOW J:   They are in the books that had to be opened and read.

MR IRELAND:   I am sorry, your Honour.

GUMMOW J:   They are in the appeal books that had to be opened, read and digested.

MR IRELAND:   Yes, but the findings of fact ‑ ‑ ‑

HAYNE J:   The question is which of those findings was relevant to the assessment of comparative responsibility.  There is a whole raft of findings, let that be accepted, but until you know what the State’s duty was and how it was breached, how can you say which of them is relevant?

MR IRELAND:   And the findings of fact which were relevant, in my respectful submission, your Honour, are those catalogued by Justice Stein in paragraphs 144 on the part of James Hardie and 145 and 146, because, at the end of the day, this was a nanny claim.

KIRBY J:   Can you identify with all of those points on 278 a finding of fact by Judge Curtis?

MR IRELAND:   Yes, I can give your Honour the references to those; they were ‑ ‑ ‑

KIRBY J:   What does Justice Stein mean by saying they must have been taken into account as distinct from, his Honour took into account?

MR IRELAND:   His Honour means this.  To explain that, could I go to the judgment of the Dust Diseases Tribunal at page 120 of volume 1 of the appeal book.

McHUGH J:   Paragraph?

MR IRELAND:   Paragraph 253.  I am sorry, if your Honours have the New South Wales Law Reports.  This is after a very lengthy judgment in which his Honour deals meticulously with the facts.  His Honour grapples with what is thought to be a difference in approach between Justice Kirby’s so-called spectrum theory of duty and his Honour has concluded in paragraph 250 that if that:

is to be applied to the facts of this case the State is in breach of a duty of care to Mr Hay, that breach is causative of his injury -

His Honour says in paragraph 252:

If the correct approach to the existence of duty be the incremental approach of Chief Justice Brennan and Justice McHugh the result may well be different.  I find it unnecessary to decide that difficult question because of my views on apportionment.

And then a very short passage in paragraph 253 is really the summary of what has gone before:

Even if the State should have been liable to Mr Hay, I do not believe it just and equitable that it should contribute to the liability of James Hardie.  James Hardie created a danger which the State merely failed to avoid.  James Hardie made large profits from selling vast quantities of asbestos products heedless of the dangers to others which James Hardie knew to be created by the use of these products.  Essentially James Hardie submit that a loss inevitably flowing from these commercial activities should be borne in part, not out of James Hardie’s profits or risk capital, but by the taxpayers of New South Wales.

Now, that is not a statement of all the reasons; that is a summary of all the things that the judge has already said, as Justice Stein in the Court of Appeal acknowledges.

The matters at paragraph 144 in the Court of Appeal’s judgment, which is at page 278 of the appeal book in the second volume, is the aggregation by Justice Stein of the other matters which must have been taken into account, all of which are based in excerpts of findings and none of which is contentious here.

In paragraph 145 of the Court of Appeal’s judgment, found at page 279 of volume 2, Justice Stein repeats the contrast.  He says:

These conclusions may be contrasted with the State’s responsibility for the damage to the plaintiff.  The highest his Honour stated this was in not following-up the Jones report –

I do not know whether your Honours remember that; that is the essential point of engagement between the State and the conditions at Wallerawang, because there was in 1958, towards the very end of Mr Hay’s employment there, a visit by Mr Jones, who was not a DLI inspector, relevantly, but was from the Health Department.  Mr Jones made a report, he gave a report to a liaison officer, Mr Slade, who was a DLI inspector ‑ ‑ ‑

GUMMOW J:   Yes, but the whole problem with these paragraphs appears at paragraph 147, I think, of Justice Stein’s reasons:

what his Honour said on apportionment does not reveal any miscarriage of the discretion –

That is not the question.  The question is whether the preconditions to the existence of the discretion had been satisfied.

MR IRELAND:   I accept that, your Honour.  Your Honour has formulated it that way, but what I am trying to ‑ ‑ ‑

GUMMOW J:   I am not formulating it that way, it is what the Act says and what lawyers have ‑ ‑ ‑

MR IRELAND:   I am sorry, your Honour has this morning pointed out that that is what the Act says and formulated the issue in that way.

GUMMOW J:   It has never been dealt with in the Court of Appeal.

McHUGH J:   Part of the problem is the Court of Appeal did not deal with the grounds of appeal.  They should have determined the question of duty.  They should have determined the question of breach.  Why did they not do it?

KIRBY J:   Was it bound up in the Azzopardi point that their Honours were limited to an appeal on a point of law?

MR IRELAND:   Yes, on point of law.

KIRBY J:   Explain that to me.

McHUGH J:   But duty is a question of law.

MR IRELAND:   Because these findings which I have sought to assemble which related to the practical culpability issue were irreviewable by the Court of Appeal.  They were cast in concrete in this litigation when Judge Curtis pronounced them.  Subject to the main question that Justice Gummow has emphasised, all that could be done was to look at those findings and say was it outside the ballpark of a legitimate exercise of discretion that the judge should have come to the view that the exemption power ‑ ‑ ‑

McHUGH J:   With great respect, that is not right.  Their duty first of all was to decide the appeal, and one of the questions raised was what was the duty and whether it had been breached and they never did it.

CALLINAN J:   And whether the judge at first instance has given complete reasons or not is a question of law, is it not?  It is really a Pettit v Dunkley point.

MR IRELAND:   Not here because the issue is a factual one about relative responsibility.

CALLINAN J:   No, but whether the trial judge has found everything and given reasons that he should have given are questions of law, are they not?

MR IRELAND:   Yes, if there is a no evidence point or if there is a no finding point.  I accept that.

CALLINAN J:   A no finding point, Pettit v Dunkley.

MR IRELAND:   Yes, I accept that, your Honour.

CALLINAN J:   And is that not the position, that there are no sufficient reasons given to lay a proper foundation for the granting of an exemption.

MR IRELAND:   I have to revert to my position that the mechanism of section 5 of the Act involves attention to responsibility and that is a factual matter.  His Honour the trial judge dealt with those matters and I say section 32 of the Dust Diseases Tribunal Act makes most of those matters impervious to re‑attention in the Court of Appeal

CALLINAN J:   You put weight upon paragraph 146, do you not?

MR IRELAND:   Yes, I do.

CALLINAN J:   You say that that is the third category, that is the assumption.  Your argument is really as simple as that, is it not?

MR IRELAND:   Yes.  This is a very short point.  The question is whether – well, that seems to be agreed.  The question is whether my analogy of a consent judgment, a concession or an assumption with all the facts on the table for evaluation on the responsibility point is good enough to enliven that mechanism.  It is quite clear that a finding in the action, a finding by the judge of the identity of the defendant as a tortfeasor, is not a precondition to the exercise of section 5.

That may be achieved by concession or, on my argument, as the judge did in the Court of Appeal, confirm by an assumption.  That is the point.  That is the simple point in this appeal.  If that is not good enough and if there is a concern that bound up with the issue of who is a tortfeasor is some necessary further deliberation on the part of the trial judge on the duty question, which is really that in disguise, then we fail.

KIRBY J:   Now, on 14, where Mr Watson announced the settlement ‑ ‑ ‑

MR IRELAND:   Sorry, your Honour? 

KIRBY J:   Page 14. 

MR IRELAND:   Thank you, your Honour. 

KIRBY J:   He handed up the amended cross‑claim and Judge Curtis said: 

That is the amendment raises no new factual contentions? 

So presumably he was trying to clarify in his mind whether or not he was being asked or would be required to determine any new factual matters.  Is that correct or not? 

MR IRELAND:   Your Honour, this was a hearing before the trial, at which an amendment was sought by James Hardie, as it then was, not to raise new factual contentions but to alter the basis upon which it asserted in its statement of claim the duty of care. 

KIRBY J:   The settlement was announced at line 16. 

MR IRELAND:   This is not the settlement with the plaintiff, your Honour. 

KIRBY J:   I see. 

MR IRELAND:   This is the settlement of cross‑claims between, I think, Pacific Power and ‑ ‑ ‑

McHUGH J:   And James Hardie. 

MR IRELAND:    ‑ ‑ ‑ James Hardie. 

McHUGH J:   With the old electricity commission. 

MR IRELAND:   Elcom. 

KIRBY J:   I see. 

MR IRELAND:   But that, really, I think, your Honour, does not bear on the present problem. 

GUMMOW J:   Mr Douglas details that in paragraphs 7 and 8 of his submissions. 

MR IRELAND:   The question is, as I seek to put it, whether the assumption is good enough.  I have already referred in passing to Azzopardi, and that will be a familiar provision.  Could I just give your Honours a copy of one additional case which was not on our list ‑ Mr Douglas will remember it – Wallaby Grip v Peirce in the Court of Appeal. 

GUMMOW J:   What new light does that shed? 

MR IRELAND:   It is simply the application of section 32 and the Azzopardi principle to this section.  I am sorry, the application of the Azzopardi principle to this very section 32 in the Dust Diseases Tribunal.  That is to say, it is limited to a challenge in point of law, as the phrase is, both in this Act and in the Workers Compensation Act with which, of course, Azzopardi – in the judgment of Justice Priestley at paragraph 6 and following.  So I have to rely on that in tandem with the main point that I am trying to make to get over the opposite argument, which involves, in its essence, saying that unless and until the judge evaluates the quality of the duty and the quality of the breach, you cannot find a tortfeasor against whom a section 5 order under the Law Reform Act could be the subject of a claim. 

Could I just give a couple of analogies, and they may be seen to be apt.  Very often in a negligence case it may be that the judge is doubtful about the question of damage.  Technically speaking, duty, breach and damage are the three essential constituents of the action.  In a contract case, there would be examples of cases where it was very debatable whether there was a contract in existence but clear that no breach, on any view of the contract, had occurred.  In those circumstances, one could find a verdict for the defendant without making a finding along the way as to the existence or otherwise of the contract.  That is because the later conclusion on the final issue intercepts the earlier controversy and pre‑empts it. 

McHUGH J:   Yes, I know, but you have to weigh up things.  Look at paragraph 183 of Judge Curtis’s judgment:

A vast quantity of material has been tendered by James Hardie which establishes beyond doubt the State of NSW throughout the period of Mr Hay’s employment at Wallerawang knew that exposure to concentrations of asbestos dust in excess of the Dreesen standard was dangerous.

MR IRELAND:   That is right.

McHUGH J:   Well, it is one thing to criticise Hardies, and on the findings of the judge their conduct was certainly open to very severe criticism.  But what about that finding at 183?

MR IRELAND:   But, your Honour, we are now straying, with respect, into the area of culpability.

McHUGH J:   Yes but you have to - I do not see at the moment, Mr Ireland, how you can determine issues under section 5 without determining questions of culpability such as in paragraph 183.

MR IRELAND:   Your Honour, I have not been clear.  My answer to your Honour’s question, how do I deal with that, is the judge took that fully into account.  He knew that - that paragraph simply means that the literature which had been seen and the conferences that had been had by the relevant date in these proceedings made it clear that people in the Department of Health who had been to the various conferences and had internal reports and the like knew just as well as everyone else knew, James Hardie in particular, that the potential for asbestos to poison people was there.  That is a given in every case of this type, just as no doubt the State of New South Wales in Ryan’s Case knew that if you ate a rotten oyster contaminated with faecal material people were likely to get sick.  It is on no different basis than that.

McHUGH J:   Well, except there are also findings by the judge that there were inspectors there every week, and at paragraph 168 he says:

it is reasonable to suppose that these inspectors did from time to time observe concentrations of visible dust which must have been in excess of the Dreesen standard ‑ ‑ ‑

MR IRELAND:   Your Honour, I must come to that.  Could I just dwell on that, because it is something that I really do have to deal with.

The Department of Labour and Industry had inspectors and it was common ground that they had been frequently to Wallerawang power station.  The evidence is set out in paragraph 167 from Mr Symons, I think it was - yes, the site manager.  So the DLI were there checking on:

safety standards, equipment and so on . . . They would make sure that the planks were the right size, scaffolding correct and so on.

There was clear evidence in the case that the DLI inspectors, who were terribly good at measuring the size of planks, had no equipment or facility to evaluate concentrations of asbestos.  The only person on the scene who could do so was someone like Mr Jones.  Mr Jones was with the Department of Health.  He was not called in in the exercise of any investigatory power.

McHUGH J:   Yes but the Jones report was circulated to the Department of Labour and Industry and all these reports were sent, Dr Gordon Smith had seen asbestos’s potential for causing cancer.

MR IRELAND:   Your Honour, I accept that.  This is a different point ‑ ‑ ‑ 

McHUGH J:   If there is a duty found against you and breach of it, then it is difficult to escape the conclusion that your client has to bear a considerable responsibility for what happened here.  It does not seem to me to be of any legal relevance to say that Hardies created the risk and you merely failed to eliminate it.

MR IRELAND:   On a contribution issue is your Honour asking?

McHUGH J:   Yes.

MR IRELAND:   It must be relevant to that.  The question is, to what degree is it relevant, and that in turn in all of these cases involves some judgmental comparison by a judge as to the potency of these various factors in damage to, in this case, Mr Hay.  That is what the judges do every day, as your Honour knows, they weigh it up.

McHUGH J:   I know.  But the learned trial judge says James Hardie created the danger which the State merely failed to avoid.

MR IRELAND:   Just as the Barclay Companies created a state of affairs which the State by its statutory powers, as in this case, failed to avoid.

McHUGH J:   Yes, but they had not duty.  The assumption against you here is that there is a duty.

MR IRELAND:   Yes.  But if there is a duty, your Honour, the question of the potency of these factors is quintessentially one for the trial judge.  You have to approach this on the basis that there is a discretion here, not what your Honour feeling irritated about this particular conclusion or myself feeling critical of it or whoever it is.  The trial judge is entitled to some integrity in his assessment of the balancing of these factors and that is what the Court of Appeal said.

McHUGH J:   Yes.

MR IRELAND:   So that one can always, as an advocate or an ex‑advocate, make a case in another direction, but this Court has said many times you do not lightly disturb these contribution decisions, Liftronics is one.

KIRBY J:   Most recently in Unver.

MR IRELAND:   I have not caught up with that one yet, I am sorry, your Honour, in preparing this case.  I am obviously not in the right resources.

McHUGH J:   No, you are both referring to the same case, Liftronics.

MR IRELAND:   Unver  – yes, Liftronics is Unver.

KIRBY J:   I remembered the worker who was injured.

MR IRELAND:   That is right, your Honours.  But what I am saying is it is easy, of course, to revisit these questions.  The point here is there is no point in tearing away at the other point of view as to culpability ‑ ‑ ‑

McHUGH J:   No, I know, but there is nothing in the judge’s judgment at first instance to indicate that he made any attempt to assess the matters set out in section 5(2).

GUMMOW J:   Paragraph 252 of the judge’s reasons.

MR IRELAND:   Did your Honour say 252?

GUMMOW J:   Paragraph 252, page 120.

KIRBY J:   May that be a reason, in the event that that conclusion is reached, to send the matter back to Judge Curtis who ‑ ‑ ‑

MR IRELAND:   I do not think you can, with respect, your Honour.

McHUGH J:   Does the Tribunal still exist or is it now part of the District Court?

KIRBY J:   No, it still exists.

MR IRELAND:   No, it still exists.

KIRBY J:   Why can it not be sent back to the Tribunal, or I suppose perhaps because our relationship is with the Court of Appeal ‑ ‑ ‑

MR IRELAND:   Privity of contract.

KIRBY J:   I suppose we can send it back to the Court of Appeal.

MR IRELAND:   In other words, I do not know if your Honours have a direct line to Judge Curtis.

KIRBY J:   But that seems a sensible way to deal with it.  It may be that he would come to the same conclusion, it may be that he would not, but he just does not seem to have approached it by applying the section.  It may be that he has in a general sort of way, but he has not demonstrated that he has and the danger ‑ ‑ ‑

MR IRELAND:   I should say it is against me, I suppose.  If you send it back to the Court of Appeal, the Court of Appeal would be still constrained by section 32 of the Dust Diseases Tribunal Act on questions of fact.

GUMMOW J:   The question is, what order - are we to make the order the Court of Appeal should have made?  The question is what order should the Court of Appeal have made?  It is as simple as that.  There may be different answers to it, but that is the question.  We do not just pick an inferior court and bundle it off.

MR IRELAND:   No.

KIRBY J:   But it is an error of law of the judge if he does not by his reasons demonstrate – this is Justice Callinan’s point earlier ‑ ‑ ‑

MR IRELAND:   One does not need to come to that.  If this Court is of the view that it is a pre-condition, as Justice Gummow has said, to the exercise of it, then it is an error of law to exercise the section 5 jurisdiction, because the conditions have not fallen in.  That is the error of law, and the Court of Appeal has made the same error on that approach.

McHUGH J:   Well, it may be that the proper order is against you that the appeal should be allowed, set aside the order of the Court of Appeal in order that the appeal of that court be allowed and remit the matter to the Dust Diseases Tribunal to determine the relevant issues.

KIRBY J:   In the light of this Court’s reasons.

MR IRELAND:   I think that would be right in light of section 32, because otherwise that court would be hidebound on the factual matter.

KIRBY J:   And it may be that if Judge Curtis went through the processes correctly he might, because let us be frank about this, he had all the factual data in his mind ‑ ‑ ‑

MR IRELAND:   I was going to say that.  This may be an extremely expensive exercise.

KIRBY J:   It may be, but there is a purpose in ‑ ‑ ‑

MR IRELAND:   But there is a question of principle at issue.

KIRBY J:    ‑ ‑ ‑ensuring that people comply with the law, a rather important purpose.

MR IRELAND:   We accept that, your Honour.

McHUGH J:   And you said on the special leave application there are a lot of cases depending on this particular case, the decision in this case in its terms of apportionment.

KIRBY J:   And the other point is that it may be if Judge Curtis does direct his attention to the statutory criteria that he would come to a different conclusion.

MR IRELAND:   That is right.  That is an open question at the moment.  It does not assist your Honours for me to repeat the proposition.  I have only one proposition, and I think I have stated it as fully as I can and as politely as I can.

McHUGH J:   Yes, well, you might say something before you sit down, Mr Ireland, about the judge’s statement at first instance about essentially Hardie’s submit that the loss should be borne in part, not out of their profits or risk capital, but by the taxpayers of New South Wales.  Now, if the matter is to go back, I think some comment will need to be made by ‑ ‑ ‑

KIRBY J:   Is that a proper consideration, in short, under the statute?

MR IRELAND:   It was not a consideration in the way that the appellant seeks to posit it, but can I just say something before I come to that, with respect?  The real point we thought in this appeal until the special leave application, was whether you can give nought under the exempting power, but it would be very unfortunate if this matter, having come this far, if your Honours will only look at the third point, not to look at the second point.  In other words, that is a true, clear question of law, whether the Wynbergen approach under the contributory negligence legislation, which mandates that there shall be a reduction in the plaintiff’s damages, is applicable by analogy here.

McHUGH J:   But I do not know that you can have a rule of law about it.  It must depend on the circumstances.

MR IRELAND:   Well, we have made our point.  The statutory language says “any” three times; any proceedings, any tortfeasor – it says the word three times.  For my friend to say that it has to be a tortfeasor with vicarious responsibility or coordinate responsibility, just is not found in the words of the section.

McHUGH J:   It may be, but it may be that it is almost always a wrongful exercise in discretion in certain circumstances to refuse to make an order where a person is a tortfeasor, but it is different in a Ryan v Fildes‑type case where there is a true vicarious liability or a true absolute liability.  One party bears no moral responsibility but is technically liable; you might say they should not bear any of the costs of contribution.  Speaking generally, when you are an independent tortfeasor, I think the case would have to be extremely rare where you could say it was a proper exercise of discretion not to make you pay something.

MR IRELAND:   That is not what the appellant says here.  The appellant says as a matter of power it cannot be done because of what the section says and our answer to that is ‑ ‑ ‑

McHUGH J:   Yes, the Court is of the view that without any findings of fact the whole issue is hypothetical and we would be asked to decide an abstract question on a section.

MR IRELAND:   If your Honours are against me on the first point, it does not arise.

McHUGH J:   Yes.

MR IRELAND:   And neither does the third point, that is what I am saying.  It would be a bit generous to the other side to decline to deal with the second point and then have a go at the third point, in my respectful submission.

KIRBY J:   Is the third point the point concerning taking into account the taxpayers?

MR IRELAND:   Yes.

KIRBY J:   But if the matter is to go back to Judge Curtis and if that is in his mind and if that is not a relevant matter for the exercise of the discretion, is it not better that we take it out of his mind now rather than that it be left there for him in an unreviewable factual decision to decide the matter with that factor in mind for a second time.

McHUGH J:   That is the distinction between the two points.

MR IRELAND:   There is no distinction, with respect.

McHUGH J:   Yes, there is, because in one the judge has taken it into account ‑ ‑ ‑

MR IRELAND:   On one view of it.

McHUGH J:   Yes.

CALLINAN J:   Mr Ireland, was that a submission your side made, that you were representing taxpayers?

MR IRELAND:   No, of course not.  I think it was probably recognised that I was but it did not place emphasis on ‑ ‑ ‑

CALLINAN J:   No, but it is an unlikely sort of point.

MR IRELAND:   Properly read, that paragraph, that last paragraph was a rounding up of the general description of the situation of the parties, that is what it is.  It is not some independent principle that says that because I am the State of New South Wales I get an easy run in a contribution case.

KIRBY J:   Yes, but to the extent that it is there it rather suggests that that is something that his Honour, however marginally, has taken into account and if it is not relevant to the statute, then it must not be taken into account.

MR IRELAND:   All I can say, your Honour, is that either this appeal should succeed in limine and the matter goes back for reconsideration but if it going back with guidance, the more telling and important point is the one that your Honours are inclined not to deal with because that is the point about which there is no authority.

GUMMOW J:   The powers of the Court of Appeal, if we are going to make the order they should have made, and that order they should have made is one to put the matter back to the Tribunal, what is the statutory basis for the Court of Appeal order?  Is it in the Dust Diseases Tribunal Act?

MR IRELAND:   Yes, section 32.

KIRBY J:   And it does not designate the particular member of the Tribunal.  That is left to the internal arrangements of the Tribunal.

MR IRELAND:   No, that is the usual system.  I think usually what happens if the judge is there and the parties are happy it goes back to the same judge.  This is a case that took four or five weeks.

GUMMOW J:   I do not think we have the text of 32.

MR IRELAND:   It is set out in Justice Priestley’s judgment ‑ ‑ ‑

McHUGH J:   Only in part.

MR IRELAND:   Only three lines of it.  There are subsections of that which deal with what may happen.

KIRBY J:   He does not quote it all, I think, and he says it is in the standard form of the workers compensation legislation with which the Court is familiar.  I have forgotten.

MR IRELAND:   Your Honour, the subsections say - from memory they say, “but such an appeal is only by leave when it is a matter of consent or costs” et cetera, and I am sorry, I did ask that the up-to-date section be here.  We have the old section; that is no good to us.  Your Honour Justice Gummow was asking me what is the power of remission to the Dust Diseases Tribunal.  We will have to just ‑ ‑ ‑

KIRBY J:   Well, the last thing that both parties would want to happen would be if it went back to the Tribunal and if it was assigned to Justice Curtis and if he determined the matter again and if he determined what has been called the second issue incorrectly, that you would go up the ladder once again.  So it may be that Mr Douglas would ask ‑ ‑ ‑

MR IRELAND:   Same time next year we will up here, your Honour.

GUMMOW J:   No, you might not be up here.

KIRBY J:   Mr Douglas might want ‑ ‑ ‑

MR IRELAND:   That makes it worse with respect, your Honour.  We have had the opportunity here, special leave was granted on this point, and

we would ask your Honours to deal with it.  But if your Honours are disinclined to deal with it, that is all I can say.

KIRBY J:   I will keep an open mind.  If Mr Douglas wants it dealt with as well, it may be that there is enough - that it is not theoretical or hypothetical.  There must be an end to this saga.

MR IRELAND:   That is what I was hoping.

KIRBY J:   If other cases hang on it, it seems responsible to try to solve the issues of principle that are involved.

MR IRELAND:   Thank you, your Honour.  There is clearly a debatable question about the exemption power.  We have set out our arguments.  It is a question of statutory construction.

KIRBY J:   You are content with the arguments you have set out?

MR IRELAND:   Yes.

KIRBY J:   You do not want to say anything more orally?

MR IRELAND:   Not on - no.

KIRBY J:   And you say it is not hypothetical?

MR IRELAND:   Certainly not, your Honour.  It is still alive until your Honours make an order in this appeal.

McHUGH J:   Thank you, Mr Ireland.

KIRBY J:   It is always a pleasure to see you, Mr Ireland.  You are always so frank.

McHUGH J:   Yes, Mr Douglas.

MR DOUGLAS:   Just a few matters in reply.  The fundamental problem with the Court of Appeal’s judgment in relation to apportionment is that which is set out in paragraph 37 of our written submissions, that is that they approached the question of apportionment by reference only to the trial judge’s views.  In other words, we had an appeal which said that it should have gone back to 1955, pace Mr Ireland who says that we did not in some ways.  We say in paragraph 38 that we are entitled to findings ourselves on all of those matters there, but we are entitled to those findings, that is the point.  Factual findings or not factual findings, we are entitled to have a judge determine those matters before the question of apportionment was actually undertaken.  That is the real problem because what the Court of Appeal has done by adopting the course it has so done is that they have actually deprived us of our right of appeal on a question of law on those other matters.

The order which we seek, which may be of some assistance to the Court, is in paragraph 70 of our written submissions which is in the form which may be required in light of what the Court has been saying.  We would ask the Court to deal with the question as to whether the State, being the taxpayer as against us being a profit-making institution or company, should be treated in the way in which it was in the last paragraph of the trial judge’s judgment.

KIRBY J:   Your preferred option is (a) over (b) in the orders that you set out in paragraph 70.

MR DOUGLAS:   Your Honour, we would be happy to get guidance on each of the three questions ‑ ‑ ‑

GUMMOW J:   We are not here to give guidance.

MR DOUGLAS:   That is right.

GUMMOW J:   We are not some sort of social welfare agency.

MR DOUGLAS:   I understand that, and that is why I intimated that to Justice Gummow when I started off ‑ ‑ ‑

KIRBY J:   But we are also not here to be a social obstruction agency.

GUMMOW J:   We are here to encourage intermediate courts to perform their statutory duty, amongst other things.

McHUGH J:   That brings me back to the nature of the appeal.  Section 32 of the Dust Diseases Act gives an appeal upon a point of law but, assuming the point of law is upheld, the section says nothing as to what the powers of the Court of Appeal are then.  Does 75A of the Supreme Court Act then bite?

KIRBY J:   Must do.

MR DOUGLAS:   Yes, because there are inclusions in the Dust Diseases Tribunal Act which effectively make the ‑ ‑ ‑

KIRBY J:   It is a designated Tribunal though, is it not?

MR DOUGLAS: Yes, and it makes the Act and rules of that - the Supreme Court Act and rules applicable to an appeal from that body. So it is as if it were an appeal from a single justice of the Supreme Court of New South Wales.

McHUGH J:   Now, having found error of law, can the Court of Appeal then go on to determine the whole case itself?

KIRBY J:   Including facts?

McHUGH J:   Including facts?

MR DOUGLAS:   Yes, I believe it can, your Honour.

GUMMOW J:   We need to know.

McHUGH J:   Yes.  Well, within seven days I think each party should put submissions to us in writing about the powers of the Court of Appeal.

MR DOUGLAS:   That matter, yes.

KIRBY J:   With reference to any findings that they have made on this question either in the context of the Dust Diseases Act or perhaps the Workers Compensation Act if that is in like terms.

MR DOUGLAS:   Yes.  We will undertake to give the Court some ‑ ‑ ‑

KIRBY J:   My recollection is you never did go on to decide factual questions.  In the old days when the Workers Compensation Act 1926 had a similar provision you simply identified the error of law and then sent it back ‑ ‑ ‑

MR DOUGLAS:   And sent it back.

McHUGH J:   That is right.

KIRBY J:   ‑ ‑ ‑ out of respect for the factual primacy of the role of the Workers Compensation Commission Court.

MR DOUGLAS:   Yes.  In that regard, my answer may have been wrong.  I was just relying upon my recollection of that Wallaby Grip Case because when we argued that case there seemed to be at least a tacit understanding that if, in fact, an error of law had been discovered that the matter then would have gone on for reassessment by the Court of Appeal.

McHUGH J:   Yes.

KIRBY J:   I have a feeling that question arose in relation to the Equal Opportunity Tribunal which had a similar bar and that the issue was debated in that context, but I do not remember the outcome.

MR DOUGLAS:   I should say that it is our application the matter go back to Judge Curtis or back to the Dust Diseases Tribunal.

KIRBY J:   Is that opposed by the State?  Does the State also seek that ‑ ‑ ‑

MR IRELAND:   No, our submission has been that it should go back to the Court of Appeal.

McHUGH J:   You go back to the?

MR IRELAND:   Court of Appeal.

McHUGH J:   Court of Appeal, yes.

MR IRELAND:   Because of the factual limitation.

McHUGH J:   Yes.

MR IRELAND:   But I did make that submission.

McHUGH J:   Yes.

MR DOUGLAS:   I think what fell from Justice Gummow, namely, that what the Court of Appeal should have done is sent it back to Judge Curtis because he did not make any findings of duty and it seems to us what this Court should do is what the Court of Appeal should have done but we will ‑ ‑ ‑

KIRBY J:   If there is a definite flaw which this Court can identify very economically and clearly, namely, the reference to the taxpayers, then it has to go back to Judge Curtis to re‑exercise his powers – I do not use the word “discretion” – in accordance with law, minus that factor.  If that is the premise, the question is should one identify another factor so that he could re‑exercise his powers in accordance with law, minus any irrelevant factors which appear on the face of his current reasons.

MR DOUGLAS:   Yes.  Of course, the Court has to be cautious about engaging in giving an advisory opinion, Bass v Permanent Trustee.

KIRBY J:   It is not advisory.  If there is a flaw identified in the reasons, it is not advisory.  It is just saying that is erroneous and should not be taken into account. 

MR DOUGLAS:   Yes, we do encourage the Court to deal with that third matter.  That is a question as to whether the State should, in any event, be the subject of an award of contribution.  The second question does involve more difficulties because it may not be a question of absolute statutory construction but rather whether, in the circumstances, the discretion could ever be exercised in favour of someone who was actually responsible as distinct from just merely liable for the tort.

CALLINAN J:   Mr Douglas, I would not want to verbal Mr Ireland, but I thought he conceded – and I will make this clear – that it was irrelevant whether the State was backed by taxpayers or not. 

MR DOUGLAS:   I thought he did, too, your Honour.

KIRBY J:   I thought he did, too.  I think he was very candid about it. 

CALLINAN J:   He says it is certainly not what was submitted down below. 

McHUGH J:   And I thought his argument really was that that really was not what the judge was saying.  That was his argument. 

MR DOUGLAS:   Yes.  I must say we have understood it differently from Mr Ireland. 

KIRBY J:   Well, insofar as it is there, to me it is a very wrong principle, because everyone comes before our courts equal:  the Crown, the State, every manifestation, every private business corporation and every individual.  The very notion that there is some free kick for governmental bodies simply because of taxpayers funds is completely antithetical to the rule of law. 

CALLINAN J:   I see Mr Ireland is nodding.  Perhaps it could be put on the record exactly what his position is in regard to that.  We need not take up any further time with it if it is what I think it is. 

MR DOUGLAS:   Yes. 

MR IRELAND:   Certainly, your Honour.  The position the State would take is that for it to be weighed in the balance that it is taxpayer‑funded and another party is not is an irrelevant consideration, and that is not what, on a true reading, the judge meant. 

McHUGH J:   Yes, thank you, Mr Ireland. 

CALLINAN J:   Thank you, Mr Ireland. 

McHUGH J:   Is there anything further, Mr Douglas? 

MR DOUGLAS:   No, your Honour. 

McHUGH J:   Very well.  The Court will reserve its decision in this matter and the Court will now adjourn. 

AT 11.22 AM THE MATTER WAS ADJOURNED