Australian National Railways Commission v Ranger Uranium Mines Pty Ltd

[1989] HCATrans 293

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A26 of 1989

B e t w e e n -

AUSTRALIAN NATIONAL RAILWAYS

COMMISSION

Applicant

and

RANGER URANIUM MINES PTY LTD

Respondent

Application for special

leave to appeal

MASON CJ DAWSON J

TOOHEY J

Railways

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 17 NOVEMBER 1989, AT 9.43 AM

Copyright in the High Court of Australia

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MR G.A. HACKETT-JONES, QC: If the Court pleases, I appear

with my learned friend, MR S.D. COLE, for the

applicant. (instructed by the Australian Government

Solicitor)

MR A.J. MYERS, QC: If the Court pleases, I appear with

MR P.B. JENS for the respondent. (instructed by

Lawson Downs)

1:1.ASON CJ: Yes, Mr Hackett-Jones.

MR HACKETT-JONES:  If the Court pleases, we submit there are

five questions of some public significance which

individually or collectively justify the Court in

granting leave to appeal in this case.

Perhaps I might refer Your Honours to

sections 34 and 36 of the 19i7 Act which are oonveniently

set out in the trial judge's judgment at page 4 of
the transcript. Your Honours will notice that

section 34 assimilates the position of the Australian

National Railways Connnission to that of a connnon

carrier. The first point that we wanted to have

considered by the Court was the standard of care
applicable to a connnon carrier. In relation to that,

we submit that the dichotomy and the standard of care

that was opened up - - -

1:1.ASON CJ: Would you mind speaking, Mr Hackett-Jones, the

acoustics in this room are not as good as they might

be.

MR HACKETT-JONES:  Yes, I am sorry, Your Honour. What we submit

is that the dichotomy and the standard of care that

was opened up by the case of COGGS V BERNARD, on the

one hand, in which the standard of care was stated

in terms of strict liability and, on the other hand,

the case of READHEAD V MIDLAND RAILWAY decided by the

Court of Exchequer Chamber in 1869 where it was

decided that the standard of care applicable to

the carriage of passengers was that imported by the

law of negligence.	We submit that that dichotomy
is not rationally sustainable and accordingly we would

seek to invoke the principle that Your Honour

the Chief Justice stated in BREAVINGTON V GODLEMAN -

stated by Mr Justice Cardoza and endorsed by

Your Honour the Chief Justice in that case. We

submit that the standard of care ought to be lowered

in relation to the carriage of goods to that imported

by the law of negligence. Of course, we concede

that one could get rid of the internal consistency

either by raising the standard of care for the carriage

of passengers or a lowering of the standard of care
for the carriage of goods but we ,submit that the latter
proposition is preferable in that it brings the law
then of carriers liability into consistency with the

general law of negligence.

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DAWSON J: That might be an interesting question, Mr Hackett-Jones,

but how does it arise in this case in the face of

section 36 and the facts of the case?

MR HACKETT-JONES:  We say, Your Honour, that it arises - well,

of course, immediately and most directly under the

principle of RUTTER V PALMER which is - perhaps I

could refer Your Honour to the transcript at page 14

where the principle is stated by Lord Justice Atkin.

Perhaps if I may refer Your Honours to the passage

that starts at line 20:

The liability of the carrier is not confined to his acts of negligence or those of his servants; it extends beyond liability for negligence; therefore when a clause in the contract exempts the carrier from any loss

it may have a reasonable meaning even though

the examption falls short of conferring

immunity for acts of negligence.

And then, perhaps, just missing the next couple of sentences and continuing:

But where in the circumstances a railway company is exposed to one kind of liability

only, and that is a liability for negligence,
there if the parties agree that the risk of
loss or damage is to be borne by the
passenger or the owner of goods they must

intend to exempt the company from liability

in the only event which is likely to expose

them to liability.

So, in other words, if we start from the position

that the liability of the carrier of goods

lies in negligence, then we can invoke that principle

to attack the findings, both of the trial judge who

found that, in fact, the consignment note did not

exempt for liability in negligence, and of the

Full Court who also entertained that view. If

Your Honours would like, I can refer you to those

two findings. At page 23 of the transcript, Your Honours,

is the finding of the trial judge.	He says, in the
second paragraph:

The plaintiff is a common carrier and I have found that the words used in the	consignment note 'owner's risk 1 ••• relieves
the Commission from all liability' are given
effect to by excluding his liability as a
common carrier but do not affect his obligations to carry goods without negligence.

And·:then that same position is adopted by

Mr Justice Jacobs, with whom Mr Justice Duggan agreed,

at page 36 of the transcript and at the bottom of that

page it said:

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There can be no doubt that a common carrier

has the right to contract to carry at

'owner's risk', but a stipulation that

goods shall be carried at 'owner's risk'

only exempts the carrier from the ordinary

risks of transit and does not cover the

carriers negligence -

and he cites IBWIS V GREAT WESTERN RAILWAY and another

case for that proposition.

I did put to the Full Court that some of this

English authority had arisen in the context of

section 7 of the 1854 English Act, the RAILWAY AND

CANAL TRAFFIC ACT, and I think His Honour

Mr Justice Jacobs goes on to refer briefly to that

submission. I did, at one point, suggest to the

Full Court that Your Honours-'- principles as stated in DARLINGTON FUTURES,which, of course, have been

subsequently confirmed in the NISHO case, were
applicable to this case. That submission did not
find favour with - and I suppose in favour of what
the Full Court held, one might say that in
GREGORY's case too, perhaps the High Court tended
to accept the validity of English authority which,

really, arose from the the 1854 English Act .and treated it

as if it had acquired an independent validity of

its own.

DAWSON J:  But did not the Full Court hold that the Railways

were not able to rely on the exclusion clause because

it was in conflict with sections 34 and 36 of the Act?

MR HACKETT-JONES: Yes, that is so, Your Honour, and that. is - - -

DAWSON J: Well, is that not, really, the only question in the

case, is it not?

MR HACKETT-JONES: Well, the first question I think I have got

to establish is that the exclusion clause does actually

exclude liability for negligence and that is the - - -

MASON CJ: Maybe you have to establish that, but your principal

hurdle is the reliance placed by the Full Court on
sections 34 and 36, the effect of that reliance being to

preclude a contracting out.

MR HACKETT-JONES: Yes, I recognize that, Your Honour, and that

_ -~~	· brings. -me to my, second point.
MASON CJ:	I think you had better direct your submissions to that

hurdle because it seems to me at the moment that that

is the hurdle that you are going to have difficulty in

surmounting.

MR HACKETT-JONES:  Yes. Well, in regard to section 34, I submit

that the interpretation of the - well, this really brings

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me to my second point, that the Full Court has failed

to have sufficient regard to what one might describe

as the inherent right of the common carrier to vary

the basis of liability and if one wants any authority
for that I would mention LUDDIT V GINGER COOTE AIRWAYS

and also Mr Justice Starke's judgment in GREGORY's

case.

MASON CJ:  But has not the Full Court recognized that a common

carrier can limit and exclude his liability? The

Full Court's reliance of sections 34 and 36 overcomes

that capacity of the common carrier.

MR HACKETT-JONES:  What it has done, if Your Honour pleases, is

to say that the words in section 34, "(except as

by this Act otherwise provided)" means that if one

has defined a route around strict liability then one

must find that route in some_provision in the Act.

Now, that is where I respectfully suggest, that

they went wrong because the provision says that the:

-common carrier ..... shall- be subject	to the obligations and entitled to the
privileges of common carriers.

Now, the Full Court has said, "Well, that means that

the common carrier is subject to strict liability unless some path has been found around that under

section 29." Now, I say that that is not right,

that is not correct. The obligations of a connnon

carrier are not a fixed and immutable point. It is

true that they commence with strict liability but the

common carrier has the right, as was pointed out by

Mr Justice Starke in GREGORY's case, to vary the

basis of liability consensually. So, therefore, when

one reads that the "common carrier shall be subject

to the obligations and entitled to;the privileges

of common carriers" one must read the obligations as

being obligations which are consensually variable

and so one therefore does not need to rely on that

passage at all:

"(except as by this Act otherwise

provided)".

One simply relies on the rights and privileges that

are inherent in the common carrier as a juridical

entity.at common law.

TOOHEY J: Where do you fit section 36 into that scheme,

Mr Hackett-Jones?

MR HACKETT-JONES: Well, I did suggest in the grounds of appeal

that one might conceivably read section 34 as subject
to section 36 and I think that is a possible construction

although I would prefer, I think, to reach the - in

other words, where it says:

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and shall carry persons and goods

without negligence or delay -

one could read that as qualifying section 34 anyway

and one could say, "Well, here is the parliamentary

equalization of the two standards of duty, the

declaration that the standards of care are

equivalent. I would not necessarily urge that

construction on the Court.

TOOHEY J:  How would that help you?

MR HACKETT-JONES: Again, it would allow me to apply that

principle in RUTTER V PALMER. But, of course, I have

recognized that a further question, that - and that

the further major question is the question whether

section 36 imposes an absolute duty or not on the

Cormnission, in other words, :whether it is possible for

the Commission to vary its obligations by contract.

That was the third major issue that I wanted to raise

with Your Honours, in effect, the interrelationship

between that statutory obligation and the contractual

exemption.

Now, our submission is that the Full Court

misinterpreted GREGORY's case. The problem, if I

might respectfully say, with GREGORY's case is that

there is no consistent ratio decidendi.

MASON CJ:  But do you not have observations by two members of

the Court in GREGORY's case against you on section 36?

MR HACKETT-JONES:  With respect, no. Perhaps if I might just

mention the judgments. It seems to me that

Mr Justice Rich does not mention the question at

all. It seems to me that Mr Justice Starke clearly

contemplates that the customer may relieve the

Commissioner from section 36 by contract. It seems

to me that Mr Justice McTiernan says that the

obligation under section 36 and the common law

obligation are, as it were, two rivers that run

side by side and whose waters never mix. In other

words, the obligation imposed by section 36 is

an obligation that the Commission owes to the public

or to the Crown - to the public. It is a public

obligation which does not affect in any way the

Commission's - - -

MASON CJ:  Now, are you right in what you say about

Mr Justice Starke. If you look at page 64 of the

report, the last paragraph on page 64, His Honour

says:

The provisions of sec. 36 impose a

duty to take care, but not an unlimited

liability in respect of amount in case

of a breach of that duty.

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And I should have thought ..... his.judgment was

inconsistent with the notion that the Commission

could contract out section 36 except in terms of

limitation, perhaps, of liability.

MR HACKETT-JONES: With respect, Your Honour, I would rely

on the passages on page 66 where he says, a little

more than half-way down:

But I find nothing in the Act which

prevents the Commissioner from making

agreements with his customers

limiting his liability, either by public

notice brought home to them or by

special contract, or makes such agreements

inconsistent with the Act itself, so long

as they be reasonable.

DAWSON J: But is that not drawing a distinction between

limiting liability and total exemption?

MR HACKETT-JONES: Well, perhaps if I might read a further

passage, a little further down the page:

Again, there is nothing in the Act which

prevents members of the public from
relieving the Commissioner of the duty

of care imposed upon him by the provisions

of section 36. The duty is imposed for

the benefit of such persons, but it is not

an absolute duty.

MASON CJ:  But see then, again, the next sentence reverts to

the language of "limitation of liability".

MR HACKETT-JONES:  What he seems to be importing here is

the English doctrine, of course, that arose under

the 1854 Act, that the Court is an arbiter, as it

were, of the reasonableness of the exemption.	Now,
as Your Honours know, under PEEK's case,

Mr Justice Blackburn established the doctrine of

the reasonable alternative. The doctrine was this,

that an exemption from liability based on negligence

was prima facie unreasonable but if it occurred in

the context of a choice being offered, one choice

being to carry at owner's risk and at a lower fee,

then the exemption for negligence became reasonable

because of that choice which had been offered to

the customer. So, he seems to be importing that

kind of doctrine, I suppose, into the Australian Act

although, of course, the terms are quite different.

I do not say that that is wrong and Your Honours may

be inclined to the view that, in fact, it is right

but, of course, what happened in this case was

precisely that, that the Commissioner offered the

customer the option to have the goods carried at owner's

risk or, alternatively, to have them carried on the

basis that he would insure them, in effect.

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So, it seems to me that while Mr Justice Starke

may be importing into our Act this English doctrine,
as of course Mr Justice Williams very clearly does

that in his judgment, nevertheless our consignment

note conforms with the requirements of the English

doctrine. That was the third question. Well,

perhaps I should just mention Your Honours' judgment

in the case of ABC V REDMORE. It seems to me that

this raises the same kind of issue but in

a different context. Of course, in that case there was

a question of whether the duty was a public duty which

existed independently of contractual duties or whether

they interacted and, of course, the decision of this

Court was that they were independent duties and the
failure by the ABC to comply with its statutory duty

did not affect the contract.

I should point out to Your Honours that the

1917 Act has now been repealed but I submit that the

same question arises under section 18 of the present

Act in a rather different form. I do not know whether

Your Honours would like to - I can read it to Your Honours if you like but it is in a somewhat different form from

section 36. It says:

The Conunission shall conduct its operations

safely, efficiently and, subject to sub-sections 19(3) and 55(3) -

which are not material -

in a manner that accords with sound

conunercial practice.

And subsection (2) says:

Nothing in sub-section (1) shall be taken

to impose on the Conunission a duty that

is enforceable by proceedings in a court.

DAWSON J: That makes it entirely different, does it not,•

Mr Hackett-Jones?

MASON CJ: Yes.
MR HACKETT-JONES:	What I say, Your Honour, is that it raises

the same question. I mean, supposing - - -

MASON CJ: It is a different provision. It says there is no

enforceable duty.

DAWSON J: It raises the same question and provides the answer.

MASON CJ: Yes.

MR HACKETT-JONES: With great respect, Your Honour, it depends

how you take - if one reads subsection (2) simply

according to what it says, the problem is still there.

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I mean, let us say that this consignment note had

been entered into under the provisions of the

present Act. Unquestionably, we did not carry the

consignment safely and the question arises just as

it does under the 1917 Act as to whether the Commission

can contract inconsistently with that duty.

The fourth question that we wanted to raise

was the applicability of the principle omnia

praesumuntur rite esse acta. As Your Honours

would be aware, having read the judgments, the

Full Court made great play of section 29 of the Act

and I think Mr Justice Jacobs thinks, if I understand him

correctly, that even if it had been proved that the

consignment had been - its terms had been authorized
in terms of section 29, that that would not save it,

as it were, because section 36 is absolute and that

is the end of the matter. M~ Justice Moore seems to

take the view that in fact the duty could have been
varied if, in fact, it had been established that the

conditions of the exemption had been approved as

envisaged by section 29.

Now, of course, the Full Court made some play of the fact that proof of compliance was not provided.

We submit that, in fact, they got it wrong, that

the onus of proof was not on us but on the plaintiff.

In other words, we say that here you have the

Commission entering into a contract on certain

conditions. The doctrine ofomnia praesumuntur rite

esse acta means that you presume that the Commission

is regularly entering into that contract in the

absence of proof to the contrary.

I would just mention the case of GIBBINS V

SKINNER which is an English decision, a decision of

Lord Goddard, where the question was whether certain

formal procedures, which were necessary before the

erection of road signs, had been carried out.	It
was presumed that they had and it was held - - -

TOOHEY J:. This is rather different, is it not, Mr Hackett-Jones,

because section 29 empowers the Commission to:

impose such conditions ..... as are .....

approved by the Minister.

MR HACKETT-JONES: Yes. Well - - -

TOOHEY J: Approval is not merely, as it were, some step along

the way, it is an essential component of the power to

impose a condition under that section.

MR HACKETT-JONES:  Yes. Well, similarly, one could have said,

in GIBBINS V SKINNER, that the road signs were not

validly erected unless the necessary prior approval had

been given. With respect, Your Honour, I think that is

a distinction of form rather than substance. Of course,

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in terms of drafting the thing, one might either say,

I suppose, that the"minister's approval as required"

or that the minister actually makes the conditions

but whether the Act follows one course or the other

is not, in my respectful submission, really material.

The fact is that here you have the Cormnission purporting

to contract on conditions which, of course, we say do

not have to be approved under section 29 anyway,

but supposing the Full Court is right and they do,

we say if that interpretation is taken, then the

doctrine of omnia praesumuntur rite esse acta means

that it is to be presumed that the requisite

approval has been given.

I might just cite one other case which is a

recent Victorian decision on that point; that is

PEARCE V CITY OF COBURG, (1973) VR 583. That was a

decision by Mr Justice Starke of the Victorian

Supreme Court regarding the-regularity of certain

planning processes.	He says, perhaps if I just
read briefly:

Giving the responsible authority a

discretion to grant or refuse a permit

subject to the provisions of s. 18B in

my judgment casts a duty on the council

to have regard to the provisions of

s. 18B before it makes any decision

and this necessarily involves, in my

opinion, the formation of an opinion

as to whether or not the granting of a

permit may cause a substantial detriment

to some other person.

And he goes on to say:

It is my opinion that the council

must be presumed to have acted regularly

until the contrary appears, and in my

judgment in this case the contrary does

not appear.

Similarly, of course, one might say that the Cormnission

is to be taken to have contracted regularly until the

contrary appears and the contrary did not appear in

this case.

The final question which we submit is one of

some importance is the question of interest and

unfortunately, in this case, the trial judge did not

state the precise basis upon which he made the award

of interest. He awarded interest under section 35

of the LOCAL AND DISTRICT CRIMINAL COURTS ACT and

that Act -

DAWSON J: Does that Act give a discretion to award

damages as from the date of loss?

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MR HACKETT-JONES: Yes, it does, Your Honour, the - - -

DAWSON J: ·But only in relation to liquidated amounts.

MR HACKETT-JONES:  Yes, it makes the distinction between

liquidated and unliquidated claims. We submit that

the claim in the present case was an unliquidated

claim and that therefore prima facie interest should

have been awarded from the date of commencement of

proceedings rather than the date of the loss. And

the question which we say is of some importance is

the question of whether it is open to a trial judge,

in effect, to obliterate the distinction between

a liquidated and unliquidated claim.

DAWSON J: The damages here were - the amount was not in dispute,

is that right?

MR HACKETT-JONES: Well, the amount was agreed at some stage.

It was agreed at some stage in the course of the

proceedings but the claim itself, of course, was

unliquidated. Those areo·the five questions

which we submit, Your Honours, justify the granting

of leave.

MASON CJ: Yes, thank you, Mr Hackett-Jones. The Court need

not trouble you, Mr Myers.

MR MYERS: If the Court pleases.

MASON CJ:  The proposed appeal raises for decision the

interpretation of the AUSTRALIAN NATIONAL RAILWAYS

ACT 1917, in particular, section 36. However, the

Act has been recently amended in a significant

respect, the counterpart of section 36 being now

expressed in different terms. The case, therefore,

does not involve a sufficient element of public

importance to warrant the grant of special leave

to appeal. The application is therefore refused.

MR MYERS~ With costs?

MASON CJ: You do not resist costs, Mr Hackett-Jones?
MR HACKETT-JONES:	No, Your Honour.

MASON CJ: The application is refused with costs.

AT 10.17 AM THE MATTER WAS ADJOURNED SINE DIE

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