Annetts & Anor v Australian Stations Pty Limited

[2001] HCATrans 161

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P97 of 2000

B e t w e e n -

LESLIE ANNETTS and SANDRA ANNETTS

Applicants

and

AUSTRALIAN STATIONS PTY LIMITED

Respondent

Application for special leave to appeal

GAUDRON J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 1 JUNE, 2001, AT 12.31 PM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please your Honours, I appear with my learned friend, MR G.M. WATSON, for the applicants.  (instructed by Brezniak Neil‑Smith & Co)

MR N.J. MULLANY:   May it please your Honours, I appear for the respondent.  (instructed by Deacons Lawyers)

GAUDRON J:   Yes, Mr Walker.

MR WALKER:   Your Honours, this is a case on pleadings and about pleadings, namely whether the alleged ‑ ‑ ‑

GAUDRON J:   That is a bad start, is it not?

MR WALKER:   It is on pleadings because it was the facts alleged in the pleadings which have to be taken as the foundation of the drastic bringing to an end of all factual inquiry and any possibility of establishing liability by my clients.

CALLINAN J:   It is a kind of a limited trial on the basis of that, Mr Walker, is it not?

MR WALKER:   Yes.  Leaving aside what your Honours have seen was a gloss on the so‑called assumed facts conveyed by the statement of claim under attack which was carried out by Justice Ipp in the Full Court, what we were left with were the following critical matters upon which I rely to persuade your Honours to grant special leave.  There were special matters between my clients and the defendant in the sense that before their 16‑year‑old, having just left school, went from rural New South Wales to remote Western Australia in the Kimberley in order to be a jackaroo, there was specific inquiry, all as pleaded, to find out about the way in which his well‑being might be secured and there was reassurance about company, that is human company, for him and supervision.

As it turned out, as your Honours have seen, within about five weeks of his arrival, an arrival that had been rapidly followed by a check‑in telephone call from his mother, he was sent about 100 kilometres away into even more remote country and left in a position where the forms of communication, late 20th century as they were, namely radio telephone and motor car, were both not maintained so as to be in working order.  It was on the basis of a pleading which advanced a case raising inquiry about the existence of a duty of care on that basis ‑ ‑ ‑

CALLINAN J:   Where are the relevant paragraphs reproduced?

MR WALKER:   They are not, your Honour.  What your Honour will find instead, for example, in application book 5 and following, there is what is a paraphrase from paragraphs 3 and following:

My understanding of the facts which are assumed to be true –

That assumption arising, as explained in paragraph 2 at about line 20:

on the assumption that some facts pleaded by the plaintiffs are true and on the basis that the defendant has admitted some other facts –

That is why we say these facts stem from pleadings.

CALLINAN J:   Mr Walker, “jackaroo” is almost, I would have thought, a term of art.  Certainly traditionally it did involve quite onerous responsibilities upon the employer, that jackaroos were different from other employees in the sense that they were taken into the household.

MR WALKER:   “In loco parentis” springs to mind, your Honour.

CALLINAN J:   Exactly.

MR WALKER:   That was in fact redoubled as an important human matter of the relationship between plaintiff and defendant, not just between the dead boy and the defendant, in this case by, ironically, telephone calls before and after his arrival.  Why I say “ironically” is because, when we come to the question of duty of care, the fact of communication between Western Australia and New South Wales police to police and New South Wales police to New South Wales resident all by telephone, is held on the basis of authorities stemming from a longer time ago as breaking a nexus.

CALLINAN J:   Tell me this.  Was the trial on this basis:  the limited trial imposed upon you or it was something in which you concurred?

MR WALKER:   In effect, I think there was a regime reached by a combination of orders by consent, as one sees from lines 4 and 17 on page 5, your Honour.

CALLINAN J:   Because I could see all sorts of evidentiary matters which might bear upon this.  Where do I find the explanation as to what happened?

MR WALKER:   The closest you can find is line 17 on page 5:

upon the motion of the defendant and with the consent of the plaintiffs, it was ordered that the action be transferred –

and then pursuant to an order there was a trial fixed of a separate issue.  That issue was whether those assumed and admitted facts were “sufficient, at law, to give rise to an independent tortious duty of care”.

CALLINAN J:   It is fashionable unfortunately, I think, sometimes for judges at first instance to try to impose this sort of thing upon parties.  The consent is often a consent that is almost extracted – I will not say under duress, but parties are pressed to do it and it often turns out to be very unsatisfactory.  I have said that before and I will say it again.

MR WALKER:    I will not seek to dissuade your Honour from it.  Unhappily for me today I cannot rely upon ‑ ‑ ‑

CALLINAN J:   Any imposition of that kind.

MR WALKER:   ‑ ‑ ‑ having been forced into a position against the judgment of those advising my clients.  Your Honours, it thus emerges that the very kind of facts, namely, the boy’s youth, the potential remoteness of the homestead where he was intended to be stationed and the very real increased remoteness of the isolated outstation from which he then ran away into the Gibson Desert, plus the telephone communications was the only practical way of communicating at those distances, combines, on the one hand, to give rise to what might be called the assumed state of affairs out of which one would try to spell a duty of care, that is, they give rise to the very kind of special position between these parties which brought the concern of the plaintiffs to the mind of the defendant as shown by the one of very few paragraphs that you will find extracted at page 41 of the application book.

There you will find in paragraph 42 about line 40 there is reference, I shudder to say it, to the relationship of proximity.  Among other things, that was based upon facts including the dealings between the parties by which the mother evinced a special tenderness for the likely care for her young son by telephone.

When it comes then to analyse the question of what I am going to call the causation, which will involve necessarily at this stage some elements of foreseeability of the illness which is assumed for the purposes of this separate issue trial, it is said ultimately by the courts below that the assumed illness did not enjoy a sufficiently direct nexus with the events, that is, the acts of negligence and omissions of negligence, which led to the boy’s death.

GAUDRON J:   There was one area in which I was somewhat mystified.  Is the illness said to have – I will not use the word “caused” but to have come about when the police informed Mr Annetts or later or ‑ ‑ ‑

MR WALKER:    Both.

GAUDRON J:   Both.  So you put that in the alternative?

MR WALKER:    Yes.  I think combined and alternative, yes.

GAUDRON J:   And that emerges clearly, does it, from the pleadings?  That is a matter which we cannot tell.

MR WALKER:    I think it emerges clearly from the assumed facts, your Honour.

GAUDRON J:   That was the area of which Justice Ipp was critical of the way in which the matter had gone forth.

MR WALKER:    One of the areas, yes.

GAUDRON J:   Yes.

MR WALKER:    And it is one where, with respect, at a trial these matters would be no doubt found in terms which would not quite be so filleted as they are in the assumed facts derived from a pleading.  In my submission, this is a case which nonetheless appropriately presents for this Court, as it presented for the courts below, questions about a psychiatric illness caused by the first news of a disaster caused to a close family loved one as well as what I will call the ultimate news of the feared disaster.

What has happened is that by the very reasons which one would have thought excited the case of negligence, that is, breach of the reasonable care, namely, the extraordinary degree of remoteness so far as rural posting is concerned, the youth of the boy and the special consideration that his mother had shown, those very facts which would excite a concern that there had been a breach of the standard of care have been held when one comes to the next juristic step of analysis to be a reason to exclude a claim, not by a crowd of people at football match, not by a crowd of people watching a motor accident at a motor sports, the kind of examples one might hypothesise, if one was concerned about huge financial burden, but by the very person and her spouse who had indicated peculiarly parental concern for the dead boy’s well being.  They are in the nature of things going to be limited in number, often only to one or two, and rarely to more than that.

That is one of the reasons why the policy reasons very explicitly advanced by Justice Ipp in the leading judgment in the court below are policy reasons which go far beyond what was called for by the occasion at hand, which were assumed facts very special to this family and this pastoralist concerning very special Australian conditions of remote posting in harsh landscape.  Rather, he referred to the policy considerations that have been considered, particularly in England, by reason, in particular, of well‑known tragedies such as grandstand witnessing of crushed deaths.

GAUDRON J:   Mr Walker, the Court is going to have to adjourn at a quarter to 1, but you are aware, I take it, that there has been a grant of special leave in Morgan v Tame?

MR WALKER:    Yes.  Now, we would rely on that.

GAUDRON J:   Well, what I was going to pose is this – and perhaps Mr Mullany can consider it during the adjournment.  The possibility that instead of granting or refusing special leave today, the application for special leave be referred to the Full Bench before whom Morgan v Tame is to be listed and for the matter to be given somewhat lengthier argument than – well, to be argued in full if the Full Bench so directs.

MR WALKER:    Yes, your Honour.  We will consider that and respond.  It is fair to say that the way in which we would rely upon Morgan v Tame as justifying either a grant of special leave here and now or the expedient that your Honour has proposed is that the facts raised in this case will provide, in our submission, either a very appreciable addition to the highly peculiar and idiosyncratic facts of Morgan v Tame to consider very important issues or, to put it more strongly, will provide a much better foundation to examine the relevant questions, not only of normal fortitude, but particularly of sudden shock and of direct perception, being the issues which, for example, in Coates in the Court of Appeal by Justice Kirby when President has been flagged for some time now as a major reason for the High Court to reconsider the question in light of changes in expectation of what is a normal mode of communication at distance, namely, telephone.  Is that a convenient time?

GAUDRON J:   Yes.  We will adjourn now until 2.15.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

GAUDRON J:   Yes, Mr Walker, I do not think we need to trouble you further, do we, or unless ‑ ‑ ‑

MR WALKER:    May it please your Honour, my friend and I have spoken and no doubt he should speak for himself.

GAUDRON J:   Thank you.  Yes, Mr Mullany.

MR MULLANY:   Yes, your Honour, we are happy with that.  As I understand what your Honour envisages it is that the two matters will be heard separately, whether or not they are ‑ ‑ ‑

GAUDRON J:   They will be listed together.

MR MULLANY:    Yes, but heard separately, as I understand your Honour.

GAUDRON J:   Yes.

MR MULLANY:    Yes, we are happy with that, your Honour.

GAUDRON J:   Yes, thank you.  Well, in that case the order will be that the application for special leave be referred to a Full Bench of the Court to be listed at the same time as Morgan v Tame but the matter is to be heard separately.

Yes, thank you.

AT 2.18 PM THE MATTER WAS ADJOURNED