Bennett v Minister of Community Welfare

[1991] HCATrans 221

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P36 of 1990

B e t w e e n -

WAYNE KENNETH BENNETT

Applicant

and

MINISTER OF COMMUNITY WELFARE

Respondent

Application for special

leave to appeal

MASON CJ
DEANE J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

Bennett 1 9/8/91

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 9 AUGUST 1991, AT 11.40 AM

Copyright in the High Court of Australia

MR M.D.F. O'SULLIVAN: If Your Honours please, I appear for

the applicant in this matter. (instructed by Mazza

Mccullum & Robinson)

MR K.H. PARKER, QC (Solicitor-General for Western

Australia): If Your Honours please, I appear with

my learned friend, MR G.T.W. TANNIN, for the

respondent. (instructed by the Crown Solicitor for

Western Australia)

MASON CJ: Yes.

MR O'SULLIVAN:  Your Honours, in this case it was held that

the respondent - - -

MASON CJ:	We are familiar with the facts and the history of the matter, so you can go straight to the point.
MR O'SULLIVAN:	If Your Honours please. Your Honours, there are two special leave points which, in my
submission, are involved in this case. The first
concerns the correct approach to the issue of
causation - - -

MASON CJ: That is the novus actus point.

MR O'SULLIVAN:  Yes, Your Honour. To some extent this

Court has dealt with this matter in the recent case of March, but of course, His Honour the trial judge

and Their Honours in the Full Court did not have

March did in the Full Court, with respect, is to apply

the benefit of when they handed down their

reasons. In particular, Your Honours, what His

what might be called a full-blown "but for" test to

the question of caus·ation in this case and what I

read the reasons of this Court in March to say is

that the "but for" test should not be regarded as
an exclusive test of causation and, indeed, is
particularly unreliable in cases such as cases of

this nature which raise questions of novus actus

interveniens.

Your Honour, the second special leave point

which, in my submission, the cases raises is this:

it raises a question as to the relevance of

responsibility for remoteness of damage principles

when the question of novus actus interveniens is

involved.

His Honour the trial judge, after purporting

to apply a "but for" - having recognized the 1976

advice as a possible nevus actus interveniens - if

I can put it that way - purported to apply the "but

for" test, answered that against the plaintiff and

left matters at that stage.

Bennett 2 9/8/91

Their Honours in the majority in the Full

Court said, in answer to the submission which was

made before them, that the question of novus actus
interveniens involved a consideration of principles
relating to responsibility for damage and matters
of policy, that it was not necessary to consider
that question because Their Honours took the view

that the issue was foreclosed on the pleadings. It

is my submission, with respect, that Their Honours

in the Full Court mistook the nature of the

applicant's case in that regard.

McHUGH J:  This action seems to have been treated as though

it was an action for damages in some way, but was

not the true nature of the action an action in

equity for compensation for breach of a fiduciary

duty?

MR O'SULLIVAN:  Your Honours, it was certainly treated as an

action for damages, both by counsel who presented

the case at trial and by His Honour the trial judge

and by Their Honours in the Full Court.

DEANE J:  It is not clear that Justice Rowland treated it as

a simple action in negligence. He ended by dealing

with damages but he treated it as an action for

breach by a fiduciary.

MR O'SULLIVAN: Yes, Your Honour, that is true. He

certainly touched upon - well, the language that he

used does make it clear, in my submission, that in

the end he regarded it as an action for damages and

he dealt with points relevant to an action for

damages and, in particular, the question of a novus

actus interveniens in that context.

MASON CJ: But I suppose, Mr O'Sullivan, it can be said that

if the matter were to be viewed as one which should

properly be characterized as a claim for equitable

compensation, it is difficult to see any reason why

the questions which you seek to argue would be

answered differently in equity as compared with the

answers that would be given at common law.

MR O'SULLIVAN:  I would respectfully make that submission,

yes, Your Honour.

DEANE J:  And if you were to be granted leave and were to

succeed	in an appeal, the matter would then have	to
go back	for yet another stage in this litigation
for the	assessment of damages, would it not?

MR O'SULLIVAN: Mr Justice Rowland, Your Honour, did assess

damages.

DEANE J: Yes, the majority did not.

Bennett 3 9/8/91

MR O'SULLIVAN: The majority did not, that is correct. It

would require a reassessment.

DEANE J: Unless this Court went into the question of

damages sufficiently to decide.

MR O'SULLIVAN: That is so, Your Honour. The question of

assessment of damage, can I say, is a matter which,

in my submission, this Court should be able to make

without undue concern over canvassing all the

evidence to any great extent.

DEANE J:  You might advance your cause a little bit further

if you said you would not be asking this Court to

be troubled by damages, but would be suggesting to

whom it should be remitted.

MR O'SULLIVAN:  Your Honour, in my submission, it would be

appropriate to send it back to the trial judge to
assess damages, albeit I was embarking on a

submission to the effect that this Court could,

without undue trouble, in my submission, assess

damages.

DEANE J: What, adopt Justice Rowland's?

MR O'SULLIVAN: Essentially, in my submission, yes,

Your Honour. It would involve a consideration of

the issues, but my submission would be, at the

appropriate time, that the issues are fairly

narrowly confined and the question of assessment -

there is not a vast amount of facts to consider in

reaching the appropriate assessment.

DEANE J:  Anyway you would be asking us to send it either

back to the Full Court or a judge at first

instance?

MR O'SULLIVAN: Yes, if Your Honour pleases.

MASON CJ:  You have raised the point sufficiently,

Mr O'Sullivan, and at this stage we will hear what

the Solicitor-General has to say.

MR O'SULLIVAN: If Your Honours please.

MR PARKER:  May it please the Court. It was necessary at

tri~l for the applicant to establish the
derendant's breach of duty caused loss; of course
that being a question of fact Chapman v Hearse and

March v Stramare which Your Honours have before you make that, beyond clear doubt, a question to be

decided in a practical and common sense way.

It is only when causation is established that

the issue of foreseeability is relevant and it

marks, at least in many cases, the limit of

Bennett 4 9/8/91

liability when causation has been proved and

Chapman v Hearse, pages 122 and 124, March

v Stramare, at 336. Even then, however,

foreseeability is not an exclusive criterion, a

factual chain of causation leading to a foreseeable

loss may be broken by a hovus actus, and the

decision of this Court in Mahoney v Kruschich

(Demolitions), 156 CLR 522, at 528 and March v

Stramare, at 336, deal with that. Again, whether a

nevus actus breaks a factual chain of causation

which has been established is very much a matter of

fact and degree.

Your Honours will have noticed, from the

outline before you, that I have a little hobby-

horse that there truly was here what was in truth a

factual finding that there was no causal connection

in fact between the breach and the loss, even

though His Honour the trial judge was approaching

the matter on the basis of novus actus.

That hobby-horse, in our respectful

submission, arises from the fact that there here is

a combination of somewhat unusual features. A

breach of the duty here pleaded is the first of

them.	We are not, of course, dealing with an
action for the loss of the fingers of this lad.	We
are dealing with a loss which is the loss of the

prospects of recovery in an action, because there
was a failure to provided independent legal advice

to the injured lad. That loss occurred in 1979, or

1980, depending on when the statute of limitation

precluded instituting the action, the prospects of

success in which are the loss.

It is undisputed as a matter of fact that from

1976 the reason the proceeding was not instituted

was the independent legal advice that the applicant

in fact obtained.

DEANE J: But, Mr Solicitor, if the director had obtained

competent advice and put before the adviser the

relevant facts, are not the chances overwhelming

that the advice would have been the correct advice?

MR PARKER: In our respectful submission, no, but more

importantly, what Your Honour is there putting was

never in issue in this case at trial.

McHUGH J: Well, can I put this to you, Mr Solicitor: there

must be a causal connection between the failure to

give advice and the plaintiff suffering the damage.

Now, if no question of independent advice came into

it, in the sense that he had not, in 1976, got his

own advice, and that had not arisen in the case,

your client must have been held responsible, must

he not?

Bennett	9/8/91
MR PARKER:	Sir, you commenced the question with the

contrary of our submission. In our respectful

submission, if one asks why it was this loss which

crystallized - it occurred in 1979 or 1980 - what
caused that loss, the loss being the loss of

prospects in an action, the factual answer, as

found, was, because the applicant acted on his own

legal advice which was against instituting

proceedings.

McHUGH J: That really does not characterize it correctly,

does it? His loss was suffered at that stage

because he got wrong independent legal advice. If

the director had given him independent legal

advice, or obtained it for him, the presumption is

it would have been correct advice.

MR PARKER:  If it please the Court, there was no issue at

trial whether the legal advice was right or wrong.

It has never been explored whatever. The only way

one can conclude it to be wrong is that after

trial, some 15 years later, a conclusion was

reached by the trial judge in favour of the

applicant on the evidence available to and

presented to the judge at that time. To say that

the advice obtained in 1976 was in any way

inadequate or wrong is simply not open as a matter

of fact, in our respectful submission, in this

case. It involves factual issues which have never

been in issue and never been examined in the

evidence, and have never been the subject of

positive findings.

The advice was obtained - and in case

Your Honours are distracted by the nature of the

legal aid service provided by the law society of

this State in 1974, may I very quickly indicate it

was a pro bono scheme. An assignment was made to a

practitioner who, for over 20 years had been a

partner in one of the leading common law litigation

firms of this State; who, by then had gone to the

Bar; he was provided a nominal sum to cover out of

pocket expenses and he undertook the work on a pro

bono basis; the rules of the Bar specifically

allowing barristers to undertake assignments of

this type for the voluntary legal aid scheme. We

know that he interviewed the applicant and that he

interviewed other officers of the institution. We

know nothing more at all as to what inquiries he

undertook as to the reasons that he reached apart

from glimpses that appear from the actual advice

that he gave and a letter that he wrote.

McHUGH J: Well, the action seems to have been conducted on

the basis that the advice was wrong. I notice at

page 13 of the appeal book Mr Justice Nicholson

said to the plaintiff:

Bennett 6 9/8/91

it is argued that the defendant cannot rely on

the bad advice given by a third party.

MR PARKER: Well, the applicant, naturally, at trial said -

and there has never been an issue to dispute it

because it has not been in issue, but he has
characterized the advice as bad because it was

advice not to proceed; he now having other advice

which is to proceed.

In our respectful submission, it is too simple

an approach when facts are not considered in detail
to say that because two legal advisers differ that

the adviser whose advice accords with the decision of the trial judge in the end is the only one that

can be a proper, a sound or a correct advice. And

to say that there was, here, some inadequacy or

incompetence in the advice - which is the

assumption underlying the formulation that was put

to me - in our respectful submission, is one that

cannot be made in this case.

McHUGH J: Well, supposing the plaintiff had not obtained

any advice in 1976, could he have obtained a

verdict on the facts of this case?

MR PARKER:  If it was then that he had not instituted a

proceeding because he did not know that he could

institute a proceeding, yes.

McHUGH J: Well, that could only be because the -

MR PARKER:	Because he had not got legal advice.
McHUGH J:	No, not because he had not got legal advice, but

because he had not got legal advice that he had a

cause of action, which he did have.

MR PARKER:  In our respectful submission, that is not going

to help answer the case here. What one has to ask

is, why did he not institute these legal

proceedings, the failure to do so resulting in loss

in 1979 or 1980, and the answer to that is, because

I had my own legal advisor and acted on his advice

and therefore, in our respectful submission, if

there is fault in the quality of that legal advice

and the care which it was given - I say "if",

bec~use in our respectful submission that

conclusion cannot be drawn and I am very conscious

of the fact that the practitioner is now several

years dead, so that I think it ought to be noted

that that was not an issue and has not been

examined in the facts - if there was a concern that

that advice was not carefully and competently

given, if there is a right on the part of this

applicant, it would be against or in respect of

that legal advice. When one is asking - - -

Bennett 7 9/8/91

DEANE J:  It may well be still against your client if one

reads what Justice Rowland said at page 27 to 28.

MR PARKER: Well that may be another case, another day, if

it please, Your Honour, and that is a very
important part of our submission. It is another
case; it is not the case that was ever raised here,
expressly at trial, questions of the quality of the

advice were not pressed in any way and of course the pleadings would have needed to be amended if

they were. They were not. The trial proceeded and

the majority of the Full Court correctly proceeded

upon the basis that the quality of the advice and

questions as to care as to quality of the advice by

the respondent were never in issue in this trial.

In our respectful submission, on a true

analysis here, the respondents obtaining legal

advice and acting upon it, the independent legal

advice he in fact had was the true cause of his

failure to institute the proceedings, his loss

being his prospects of success in it; the breach of

duty by the respondent in 1974 and following, being

in truth no more than an antecedent condition, not

amounting to a cause. It would be different if the

cause of action and the loss were different, if it
was in respect of the loss of fingers, but we are
not dealing with that case; we are dealing with a

quite different case and we are dealing here with

the pretty simple factual issue:  why was it not

that this applicant did not institute his

proceedings and therefore run the chances of a win?

And the answer to that, as a matter of fact, in our

respectful submission, is because he had his advice

and he acted upon it and there is just no case at

all made against the present respondent that he

should in some way, or that the duty that he

breached, in some way went to the quality of that

advice.

McHUGH J:	Can a fiduciary say to a person who has suffered loss as a result of his breach, "In law I am not
accountable for your loss because you have gone and
got independent advice which turned out to be bad
advice"?
MR PARKER:	Your Honour still has the "bad advice" component and I will not repeat my submissions about that.
In-our respectful submission, the question that
Your Honour poses should stop, "because you went and got exactly that which I failed to provide you and thereafter acted upon it." Here the only
allegation of breach of duty was a failure to
provide independent legal advice.  The applicant
himself, realizing the need for it and the deficiency of the director, went and obtained
exactly that which the respondent failed to provide
Bennett	9/8/91 in his breach of duty. Thereafter, having got that which was the sole failure in issue in this case on the part of the respondent, the applicant acted
upon that advice.

In our respectful submission, it makes no

difference whether it is a tort feasor or a

fiduciary in the facts and in the legal setting of

this case. The duty pleaded was solely a failure

to provide independent legal advice. None of the issues that go to the quality of that advice have

been examined in the evidence or were in issue.

MASON CJ:  I think you have made that point, Mr Solicitor.

MR PARKER:  I have indeed, thank you, sir. I believe our

answer is short and it is that which I have put.

It is that there was a case put on a limited front.

The case may, with hindsight, have been put on a
broader front but it was not put upon that front.

The front upon which it was put, in our respectful

submission, is answered in fact by the findings

that have been made. The duty that has been

breached by the respondent, in our respectful
submission, has not led to the loss of which the
applicant claims.

I had prepared to go over the whole of the issues and the question of whether the novus actus

tests had been correctly applied and so on.

Your Honours's interventions and questioning cause

me to wonder whether that would be quite

unnecessary; whether Your Honours have focussed

upon the sole issue that concerns you.

MASON CJ: Well, we have identified, I think, in our

questions to you, the problem as we see it in terms

of the grant or refusal of special leave.

MR PARKER:  To that, if it please Your Honours, then, our

answer is: the case made against us at trial was

confined to a breach of duty to provide independent
legal advice.	The case did not in any way involve

questions of the quality of that legal advice - - -

MASON CJ:  I think that message has been received.

MR PARKER: Jf it please the Court. Therefore, the

postulations that Your Honours put to me as to

somebody, the applicant, going and getting bad

advice or wrong advice are matters that were not

put against the respondent in this case. For

those - - -

MASON CJ:  Is there anything else you want to say in terms

of the refusal or grant of special leave?

Bennett 9 9/8/91

MR PARKER:  No, if that is the issue concerning

Your Honours, then, in our submission, that is our

answer. I would only add that whatever be the

outcome of the application no application would be

made for costs on the part of the respondent.

MASON CJ: Yes, thank you, Mr Solicitor. We need not

trouble you, Mr O'Sullivan. There will be a grant

of special leave to appeal in this case.

MR O'SULLIVAN: If Your Honours please.

AT 12.07 PM THE MATTER WAS ADJOURNED SINE DIE

Bennett 10 9/8/91