Arsalan v Rixon; Nguyen v Cassim

[2021] HCATrans 43

[2021] HCATrans 043

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S159 of 2020

B e t w e e n -

AHYA-UD-DIN ARSALAN

Applicant

and

ALEX RIXON

Respondent

Office of the Registry
  Sydney  No S162 of 2020

B e t w e e n -

DYLAN NGUYEN

Applicant

and

AZAD CASSIM

Respondent

Applications for special leave to appeal

KIEFEL CJ
KEANE J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 12 MARCH 2021, AT 11.22 AM

Copyright in the High Court of Australia

____________________

MR J.T. GLEESON, SC:   May it please the Court, I appear with MR S. HABIB, SC and MR K.G. OLIVER for the applicant in each matter.  (instructed by MCK Lawyers)

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR W.R. RICHEY, for the respondents in each matter.  (instructed by Spectre Law)

KIEFEL CJ:   Yes, Mr Gleeson.

MR GLEESON:   Thank you, your Honours.  The applications concern the correct method by which damages are to be assessed where a claimant suffers by negligence of a defendant the temporary loss of use of a non‑income producing vehicle during a period in which she or he has a need to use that vehicle.  The question of law expressed at a level of generality was accurately recorded by Justice Meagher at page 52 of the book in the Nguyen matter, S162 of 2020, paragraph 15, which is:

whether the “need” for a replacement vehicle, once established, is to be satisfied by a vehicle which is the same as, or so far as is possible equivalent to, the damaged vehicle in terms of make, model, age and specifications . . . or by a vehicle which is sufficiently comparable to the damaged vehicle in terms of functionality and specifications to satisfy the relevant uses to which that vehicle was capable of being and likely to have been put during the period of repair ‑ ‑ ‑

KIEFEL CJ:   So, is the distinction between mere utility and the enjoyment of life?

MR GLEESON:   Perhaps it is slightly more than that, your Honour, in the sense, as Justice Meagher indicates at paragraph 21, that where one is seeking compensation for a replacement vehicle which has specific or perhaps unique features, what will need to be shown is a connection between those features and the use to which the vehicle would be put in order to establish compensation at that higher level. 

Your Honours, the general question breaks down into three questions of law.  The first is the conceptual question of the nature of the damages that are being awarded in this case.  If I can ask your Honours to go to pages 57 to 59 of this book, between paragraphs 33 and 38, Justice White records that the primary way that the case was put on our part below was that a conceptual approach should be taken to the damages where one identifies the relevant need and then awards the market cost to meet that need as had been supported by Justice Ipp and Justice Handley obiter in the earlier New South Wales Court of Appeal decision.

On that question, the Court has split in this fashion.  If one goes over to page 60, paragraph 42, in the first sentence, Justice White has squarely rejected the conceptual approach and he has hinged his entire analysis on special damages by way of mitigation.  By contrast, Justice Emmett, while of course also in the majority, at page 92, paragraph 130, has stated a principle that would appear to be very close to the conceptual approach.

Then again, Justice Meagher, at pages 49 to 51, paragraph 8, appears to have adopted the special damages approach but is agnostic to whether that is mitigation or whether it is special damages representing expenditure incurred as a foreseeable consequence of the tort because, his Honour says, the analysis in each case converges on reasonableness and, paragraph 14, the considerations that bear on reasonableness.

That is the first area where there is a clear split of principle between the court.  The second area is what precisely is the need and what exactly are the damages compensating for.  If I could start with Justice Emmett at page 89 to 91, in 10 tightly compressed paragraphs, which make no reference to any of the discussion in the United Kingdom, Australian or New Zealand cases that have grappled with this question, his Honour has taken the approach, paragraphs 119 to 120, that everything is resolved by restitutio in integrum, and 120, by definition, once you establish need, it is need for use of the damage vehicle.

His Honour then has a proposition in 121 that it can be assumed that most motor vehicles are fungibles, which we have made some criticism of, and assuming they are fungibles, his Honour at 123 to 125 said you inquire first into what is the equivalent vehicle as close as possible in make, model or year, and then you find out the cost of hiring that, which at 128 is a market cost, and at 129 it is irrelevant to inquire into the functions or the uses that the person needed for the vehicle during that period of repair.

KIEFEL CJ:   Does the question of what is the relevant loss arise at any point?

MR GLEESON:   It does, your Honour, it does.

KIEFEL CJ:   What is the relevant loss?

MR GLEESON:   For us, the loss is the loss of use of the vehicle in terms of the uses to which it was capable of being put and would have been put during the period of repair.  That is the loss as we see it.  For Justice Emmett, the loss is different.  The loss appears to be the loss of the use of the damaged vehicle - that is paragraph 120 ‑ ‑ ‑

KIEFEL CJ:   Whereas yours is loss of use of a vehicle which works?

MR GLEESON:   A vehicle which could be put to the uses that you would have done during that period, not just – Mr Walker has said that we and Justice Meagher and Justice Basten are spartan people.  It is not that you replace a stove with a campfire, it is not that - that is a caricature of our argument.  It is that what the plaintiff does is establish to the court’s satisfaction exactly what uses they would have put to the vehicle.  So, if one has an Aston Martin or a Lamborghini and it is off the road for a period of two weeks, you do not automatically get the cost of hire of an Aston Martin or a Lamborghini.  It is a more precise inquiry into what were the uses to which it would have been put. 

Taking up your Honour’s question further – and coming to Justice White – he appears to take a different approach to what is the use and that is because, after discussing the English authorities, including – this is at page 61 - the decision in Watson Norie which we submit is still good law in England, his Honour, when he comes to paragraph 54, separates out two different questions.  The first is whether there is:

a reasonable need for a replacement car.

The second question is whether there is a reasonable need for a commensurate car.  So, they are two separate questions.  Justice Emmett’s singular question has become double.  On the second question, the plaintiff gets the benefit of a prima facie inference that if you regularly use a particular car it would not be unreasonable to call for a commensurate car.  That really then comes to a head at paragraph 60 in his Honour’s reasons where the loss or damage includes damage to feelings. 

So, the Aston Martin driver, who his Honour says may feel better and may feel better regarded driving the Aston Martin, by being deprived of that car is entitled to damages for that injury to feelings.  That really raises a rather stark question.  We are in the area of consequential loss.  We are not in the area of the direct loss – the wrongdoer has to restore the car.  But does the wrongdoer, during the period of repair, have to compensate for this potential injury to feelings, particularly if – when your Honours go to the key passage at paragraph 69 where it is all brought together by Justice White, under 69(3) – we are solely in the territory of special damages and mitigation – that is his Honour’s entry point – under 69(4), it is:

the reasonable cost of hiring a replacement vehicle –

That is the first step of the need.  Section 69(5) is where the feelings may be compensable.  Then, 69(6) to (8) – which is the real rub and why this has such enormous practical significance in the lower tribunals – is that as soon as the plaintiff proves I needed a vehicle to get from A to B, with four seats, et cetera, the plaintiff who owned the Aston Martin has a prima facie inference that he or she needed something like an Aston Martin.  The reason for that is given in (7), that the loss – and this comes back to your Honour the Chief Justice’s question – is said to be the loss of driving in a vehicle:

which has the safety, luxury and prestige of the damaged vehicle.–

Then, 69(8), an onus – it appears to be a legal onus – is on the defendant because we are in mitigation territory to establish:

that the hire of the particular replacement vehicle was unreasonable –

How exactly does that work in the local courts and tribunals?  The plaintiff puts on a statement and says, “I had a Lamborghini and I needed to get from A to B for the two‑week period”.  In many tribunals there will be no cross‑examination available.  So the onus referred to in 69(8) would be impossible of being established.  If cross‑examination is allowed, what types of questions are meant to be posed by the defendant to try and show that the prima facie inference is to be displaced.  That approach ‑ ‑ ‑

KIEFEL CJ:   Mr Gleeson, is the question of the time which the repairs might take relevant to the question of reasonableness?  Even if you owned an Aston Martin, if the repairs were, say, one week, would that weigh into the equation of what is reasonableness?  I am just trying to test, as you would appreciate, the question of how general this inquiry is and whether or not there is really a question here or it is just one part of a multifaceted question.

MR GLEESON:   I give two answers to your Honour’s question.  It is not simply enough, we would submit, to say reasonableness is a question of fact; leave it to a multitude of cases.  What I have sought to demonstrate so far is that the entry point for the analysis from Justice Emmett and Justice White is different. 

They are compensating for different things and the technique they are using is different because when the tribunal of fact is asked to choose between Justice Emmett and Justice White, one approach is conceptual, it would appear.  The other approach has prima facie inferences and onuses that are to be discharged.

One of them is compensating for the car almost in a Roman law sense:  “You’ve taken my slave.  I’ve lost the use of my slave for three weeks.  I need the hire of the identical slave.”  The other is more directly recognising that feelings may be part of the exercise but, disposing of them under the prima facie onus‑type approach, we would commend that against that there is a clear issue of principle for the court.

Are either of those approaches correct? We say no.  Is Justice Meagher’s and Justice Basten’s approach correct?  We say yes and what it does, in the Justice Meagher/Justice Basten approach, is provide a very precise standard by which the court answers the question of fact.  You prove the need for a replacement vehicle.  You identify the uses to which you would have put it and having regard to the proven uses you establish a vehicle of a sufficient specification and make to meet those uses.  Then you identify the market cost of that vehicle.  That is a clear, stepped process which responds to a correct identification, a loss.

Your Honours, to see if this judgment is left unexamined by the court, there are significant difficulties in principle.  It is useful to look at the cases of the people who succeeded and the people who failed and why that happened.  At page 93, Mr Cassim, that was his evidence as to his case and that would be read together with the earlier discussion at page 79, paragraphs 96 and 97.  He was a person whose needs – paragraph 96 – could adequately be met by the Corolla:

he wanted “a nice luxury car” –

but:

it was most likely that any vehicle that had five seats would have been feasible although he preferred to have a car similar to his own.

Back at paragraphs 133 and 134, he gets the BMW not the Corolla.  One asks:  why does he get the BMW, not the Corolla?  On Justice Emmett’s civilian approach, he gets the BMW because he had a BMW.  On Justice White’s approach, it is not spelt out why he gets the BMW.  All we know is from paragraph 76 that there was “no error of law”.  Is that because Mr Cassim got the benefit of the prima facie inference that, having regard to his feelings, he needed the satisfaction of a BMW and the onus was not discharged by the defendant?  Perhaps; it cannot be entirely sure.  Then one compares that ‑ ‑ ‑

KIEFEL CJ:   Mr Gleeson, while you are interrupted, why do you say Justice Emmett’s approach was a civilian approach?

MR GLEESON:   Because he started with restitutio in integrum and without reference to any further authority.

KIEFEL CJ:   I see.

MR GLEESON:   What he said is you must get exactly what you had, and for instance he says that in paragraph 128 on page 91 that indeed if I am the wrongdoer and I am able to make available the equivalent vehicle, then I have satisfied the need and there is then no question of further monetary damages.

KIEFEL CJ:   Mr Gleeson, if the BMW was written off, the obligation would be to provide an equivalent BMW, but the argument is, as I understand it, that where one is concerned with losses which are only temporary, that a different rule applies.

MR GLEESON:   Yes, that is so, your Honour, and coming back to your Honour’s earlier question, if the BMW is damaged and a repair period would ordinarily be four weeks, but one could accelerate the repair period by paying overtime charges, et cetera, then those sorts of matters would of course come into the way the damages were assessed.  That issue is not squarely before the court. 

Part of the reason this is so important is that your Honours know that it is the advent of the credit hire industry which has created the deluge of cases in the courts in England and in Australia.  That is why it is back in the Court of Appeal in England regularly.  This case was meant to be the test case which settled the principles for the hundreds of matters which are either in the lower tribunals or are being settled in accordance with legal principle.  Our submission is it has not achieved that.

KIEFEL CJ:   What I was trying to ask you before in relation to the temporal aspect was whether or not in terms of reasonableness there would be a stronger case for a like car in make and manufacture if the repairs were going to take four or six weeks, but it would seem less reasonable if it was only a matter of three or four days or a week.

MR GLEESON:   Yes.  Our answer to that, your Honour, would be on Justice Meagher’s principled approach there would be no presumptions one way or the other.  One would simply look at the proven evidence of need. 

If the barrister driving the Aston Martin takes it out once a week on a particular day, but otherwise is happy to drive the family car, one would take that into account and say what is your proven need?  How does the Aston Martin satisfy that need and for what…..  I notice the bell, your Honours.  May it please the Court.

KIEFEL CJ:   Yes, thank you.  Yes, Mr Walker.

MR WALKER:   If it please your Honours.  There are, in our submission, three principal reasons why these are not appropriate cases for special leave.  The first is that, contrary to the manner in which it has been put, there are no doctrinal gulfs between the four judges whose reasons are before the Court.

KEANE J:   Can I just pause you there?

MR WALKER:   Yes, your Honour.

KEANE J:   There does seem to be something in the argument that Justice Emmett’s approach is distinctly different in point of principle to the approach of the other judges in the sense that his Honour speaks of need in quotation marks and it does seem that he is really looking more at this notion of what is the interest that has been interfered with.  It may well be, rightly, that his Honour approaches the matter on the footing that, as with tort law generally, we are concerned with the interest of the plaintiff that has been interfered with, and here the interest that has been interfered with as opposed to the need, the utility – the interest that has been interfered with is the use and possession of a BMW.

MR WALKER:   Yes.

KEANE J:   Now, it seems to me that that may well be a question of principle that does divide the courts below and there would be some good purpose served in addressing that question of principle. 

MR WALKER:   I cannot of course say there is no point of principle involved because any argument which begins with restitutio in integrum sounds like an argument of principle, as it is – that is the first point.  The second thing is this Court is the maker of authorities that operate by stare decisis, but so are other courts including the Court of Appeal of New South Wales, which has, with respect, correctly and certainly not in a matter which indicates incorrectness, settled the matter for the disputes which are numerous, are legion, and were a reason why we got leave in the Court of Appeal. 

But it is different now, because now we have a decision.  It might be said – has been said against us – that it is not just a majority decision, but there is a split in the majority.  I will come to that in a second.  The first point why there should not be special leave is, I repeat, there is no great gulf between Justice Emmett’s approach to the interest infringed, which enables one to identify the specific species of loss, damage, for which there may be damages, and the measure of damages will follow logically and consequentially, because in each case there is an understanding that a motor car is not just a bare bones mode of transport. 

The “need” – an unfortunately unambiguous word in this area of discourse, which has perhaps already an excess of case law and does not need this Court’s supervision because it has been settled in the Court of Appeal - the word “need” has been used, for example, to describe what is absent when, for example, the same crash that damages the car – but not beyond repair – puts the owner in hospital for a period longer than the time for the car to be repaired or, more happily, crashed just before you were about to go on a cruise where you would not be needing a car again for a period sufficient to allow it to be repaired. 

Those are the examples judges elsewhere in other cases have used to describe need - in that case by reference to a case where there is no need.  But otherwise all the judges accept that the need which needs to be demonstrated – everyone agrees on that, the plaintiff bears the onus on showing what is called need – is a matter that is to be understood through the prism of the infringed interests, as recourse to, availability of the car to be used. 

These are not income producing chattels and so the notion that it could be anything called precision about predicting how often you will have ducked into the car to the shops or decided to travel to the mountains for a picnic or to travel interstate, all of them obviously raising different questions concerning the importance of comfortable surroundings, safety of handling, et cetera, all of those things are part of the matrix by which the car was selected in the first place, that particular car, not a Toyota, a BMW, by a preference that the law not only does not disapprove – or at least until the present applicants came along to invite that disapproval – but actually rewards.

It is for those reasons, for example, that it is significant that in none of the reasons, the four sets of reasons that your Honours have before you, is there any suggestion that there is some defect of analysis, false analogy, or wrong doctrine by Justice White’s persuasive demonstration of the coherence of the approach he and Justice Emmett advance, see 71 of the application book.  It happens also to be paragraph 71, and paragraph 72, and paragraph 73, where your Honours see that which must cohere in order for the doctrine to work.

What happens if you do not hire a replacement vehicle?  One thing is for sure, that does not mean that you have not lost the use of yours, by reason of the defendant’s wrong.  If you have leased – paragraph 72 - at the extortionate rates that your Honours may well imagine, because of the supposed attractiveness of tax deductibility, a prestige, so‑called, vehicle, the common law has never been heard to say that the money that you were paying to have the car available is not the obvious - it is not a matter of inference or presumption, it is just the obvious measure of the loss suffered by that aspect of your interests in the ownership of the car being infringed.

I cannot use it, it is something for use, and for availability for use.  You have deprived me of that, and I have chosen not to replace the vehicle, so I am depriving myself of the facility I had, not because I am on a cruise, not because I am in traction in hospital, but because I simply do not think I will be able to get a replacement for that lovely car. 

Of course you will get those lease payments, as you would get – the ‘Greta Holme’ may be an apparently factually remote example, but it supplies principles to give a doctrinal understanding, just as you might get an appropriately‑measured timed value for the capital expenditure involved in having a non‑income‑producing chattel that you had bought, self‑evidently, this is self‑evident, to use – we are not talking about the special case of people who collect motor cars not to be driven, we are talking about people who will show, in their evidence‑in‑chief, that they owned their car and drove it, and had it because they wished to be able to drive it whenever the whim or desire or demonstrated social purpose presented itself.

Those are not matters that the common law would examine and say, going for a picnic is not a very important need but taking the children to school is an important need, that is not the stuff of common law adjudication when it comes to an infringed interest in an item of property where the common law would certainly not be heard to say we will protect the interests of people who buy Corollas but not the interests of people who buy, to use the extreme my friend brings up, Lamborghinis. 

It is for those reasons, we submit, that it is not even apparent, and is certainly not real, this supposed gulf that only this Court can fill by taking on this case in relation to the pronouncement of doctrine.  There is of course a more technical and explicit reason, which is easy to demonstrate to the small claim tribunals, the disciplining of which my learned friend has in mind.

At page 56 of the application book, in paragraph 27, there cannot be any doubt in stare decisis terms and ratio decidendi that Justice White agrees generally with the reasons of Justice Emmett shrinking only from, if I may put it this way with great respect, the resort to perhaps Roman law influenced conceptualisation of vehicles as fungibles.

Of course, when Justice Emmett talks about that, he of course, immediately and in context, continues to understand that there are different ways in which one may look for what the common law, as pronounced in this decision calls for, namely a sufficient equivalence to make it an appropriate restitutio in integrum, that is an appropriate compensation.  Nobody doubts it is compensation that is in question in this case.

KEANE J:   Mr Walker, when one looks at page 69, paragraph 69 and over to 70, the list of matters that Justice White refers to, Justice Emmett’s approach is much simpler.

MR WALKER:   Yes, but it is to the same effect.  There is no doctrinal divergence.  It is, as it were, a spelling out of steps by smaller increments on pages 69 to 70 than Justice Emmett’s approach – they are headed in exactly the same direction and touch upon exactly the same factual probanda for a plaintiff.

KEANE J:   But if we are talking about small claims tribunals dealing with these questions, would it not be of assistance to identify or to establish for them, if it would be correct in principle, a simpler approach rather than a more complicated one?

MR WALKER:   As a general proposition, no one could deny that, your Honour.

KEANE J:   Occam’s razor is always a good thing.

MR WALKER:   Yes, but it is only a perverse few of the good of the profession that would argue for complexity.  We accept that - this is the common law, in relation to an absolutely commonplace event likely alas to recur indefinitely.  We accept entirely that if there were a need for this Court to intervene in order to bring salutary simplicity where there is currently excessive complexity, then I really could not be heard sensibly against special leave.

But when one looks at the way in which Justice Emmett, as my friend has, with respect, already drawn to your attention, starting at page 89, in his Honour’s paragraph 119, under the description “The Relevant Principle”, in the next three pages deals with the matter, first of all there is no doctrinal divergence between the compressed way in which his Honour sets it out in those pages compared to the multiple steps which, in slightly fewer pages, Justice White uses in what his Honour calls the additional reasons, not intended to contradict his general agreement with the reasons of Justice Emmett.

There is the clear guidance to lower courts.  If one looks to, for example, paragraph 127, there is where the previously vexed notion of “need” is put to rest:

the relevant “need” is to use the damaged vehicle as and when desired -

That is why it becomes important to say, “Would you have used this car during the period of repair?”  “No, because I had a holiday booked for a longer period than that.”  Once that is established, the question, in our submission, follows exactly as his Honour concludes with a particular issue, which we know is financially driven – the particular issue addressed in paragraph 129 we accept and, with respect, in simple terms agreed in by Justice White therefore providing currently without, with respect, the need for this Court to consider its correctness because it is plainly correct – the way in which the Court has already laid down the relevant law.  Once one sees at the foot of page 91 that:

The reference to “need” is to be understood as a reference to the loss suffered by the claimant by reason of being deprived of the use of the claimant’s damaged vehicle -

not of the use of any vehicle, the common law does not have intellectual resources capable of translating a car when loss of its use is the infringed interest to what I will call a fair average quality car, even worse, the cheapest possible car, whereas when it comes to actually replacing a completely ruined motor car or paying for the cost of keeping it available, such as lease payments or the outlaid capital, the common law would always respect the property interest by saying it is a Lamborghini that has been damaged.  It is the cost of owning a Lamborghini which will be the damages necessary to compensate for the damage of the interest infringed in that case which is having had the motor car at all, not simply having it damaged temporarily. 

So paragraph 129 is the culmination of a simple and straightforward set of propositions not in any way idiosyncratic to this peculiar insurance and other market of which your Honours have seen a small foretaste in this special leave application.  None of those special mercantile considerations affect the possibility of how the common law will be pronounced just as, with respect, the common law principles will not be affected by the fact that, as it happens, at the moment they will often fall to be determined in proceedings which, recognising the proportionality principle with respect to the cost of litigation, streamline - some might say mutilate – the procedures by which facts, for example, can be contested or even matters be argued. 

So the fact that there may not be cross‑examination cannot possibly affect the question of what the common law doctrine would be.  The common law does not lend itself to saying that these are the principles or rules which obtain in cases where there will not be cross‑examination about questions of loss, for example. 

Finally, with respect to matters of doctrine and the simplicity which we submit is already correctly to be found in the combined and congruent reasons of Justices Emmett and White, one notes the answer by my learned friend to the Chief Justice’s question concerning whether a climbing down or a scaling down from damages measured by reference to a sufficiently equivalent car, as the market rates show, to the car which has been taken off the road temporarily, my learned friend seems to accept that that for which they contend is highly specific to a notion of repair cases where by definition assuming, which is not always true, that the repairs will be successful in rendering the car roadworthy again, that the principles apply only to that temporary period.

With respect, as the Chief Justice’s questions throw up, that rather suggests that what is being proposed here is some kind of common law rule or sub rule, which will involve looking at just how long the period is.  Now, it will always be looked at in retrospect, but people ought to know where they stand in prospect.  Not everyone knows how long the repairs are going to take, and not everyone believes what the panel beater says. 

So, one or two weeks is one thing in which you may say, well, the kids do not have sport for that fortnight, and I can probably walk to the shops, but for six or eight, including if the weather is good, which I will not know – in three weeks’ time I might want to go to the mountains on a picnic - all of those matters, which are intensely factual, lead to the other reason for this being an inappropriate case for special leave, namely, that this is an attempt by the applicants to ask this Court to be promulgating common law sub rules as if they are matters of doctrine where in truth they are simply the way in which appropriately simple general principles come to be applied according to the particular facts of particular cases, including, as Justice Meagher himself says in paragraph 21, the case which was not before the Court in these proceedings, where somebody does say, “But I own a Rolls Royce because of the value it has to me of driving a Rolls Royce”.  His Honour does not say that that is out of court, whether for two days or 20 days or 200 days, the last of which would probably be more relevant to a Rolls Royce, one might think. 

Now, it is for those reasons, in our submissions, your Honours, that the invitation being held out to your Honours is for an endeavour which is most unlikely to produce any departure from the general principles that guided all four sets of reasons below and produced correct conclusions and exposition of principle in the two majority reasons to which we have referred.  If it please your Honours.

KIEFEL CJ:   Do you have anything in reply, Mr Gleeson?

MR GLEESON:   Thank you, your Honour.  Taking up Justice Keane’s question, there really are three different approaches to the interest being compensated for in the three judgments.  With Justice Emmett the interest is compensation for the loss of use and possession of the BMW, and what is behind that is really a concept of value.  You should have a vehicle of the same value, the same specification and make.  

Behind Justice White’s approach, which allows from the prima facia inference and the onus on the defendant, there does seem to be an element that you are compensating for two things:  firstly, inconvenience; and, secondly, potentially, damage to feelings.  Finally, on the approach of Justice Meagher and Justice Basten, which we commend, and we submit is simple, if one goes back to paragraph 17 on page 52, the compensation is for the:

inconvenience resulting from the loss of use of the damaged vehicle - 

and it is for that reason in paragraph 20, Justice Meagher, we submit, correctly, says that there will not be any necessary relationship between “quality, value and prestige” – the sort of things that Justice White says are relevant, and:

functionality or specifications . . . the uses to which a motor vehicle might be put.

That, we submit, is a fundamental three‑way difference which calls for the Court’s intervention.

Your Honours, the only other matters in response to the proposition that the fortunate tribunals of fact who will deal with these many matters can simply pick up this judgment and say it is all straightforward because Justice White tells us he agrees with Justice Emmett.  The two problems with that, of course, are the first thing Justice White says is, I would not describe them as fungibles and yet, in Justice Emmett’s analysis at paragraph 121 that is central.  He says most motor vehicles are fungible.  Therefore, you do not inquire into use and he immediately hastens to say, if it is not a fungible, you do inquire into use. 

So, central to Justice Emmett is some distinction between fungible and non‑fungible.  It is a civilian notion.  Justice White, we say, correctly has said, I cannot agree with that.  Secondly, the additional reasons, which dwarf Justice Emmett’s reasons in their length and their analysis of authority, do culminate, in paragraph 69, with its eight subparagraphs, and it is almost impossible to identify a single one of those subparagraphs that is congruent with Justice Emmett’s approach.  May it please the Court.

KIEFEL CJ:   Thank you.  There will be a grant of special leave in these matters.  What is your time estimate, Mr Gleeson?

MR GLEESON:   One day, your Honour.

KIEFEL CJ:   Do you agree?  Yes, thank you.

AT 12.07 PM THE MATTERS WERE CONCLUDED