Bird v DP (a pseudonym)

[2023] HCATrans 145

[2023] HCATrans 145

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M26 of 2023

B e t w e e n -

BISHOP PAUL BERNARD BIRD

Applicant

and

DP (A PSEUDONYM)

Respondent

Application for special leave to appeal

GAGELER J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 20 OCTOBER 2023, AT 9.30 AM

Copyright in the High Court of Australia

GAGELER J:   In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MR B.W. WALKER, SC appears with MR A.M. DINELLI, KC and MR A.D. JAMES-MARTIN for the applicant.  (instructed by Colin Biggers & Paisley Lawyers)

MR D.R. CAMPBELL, SC appears with MR G.J. BOAS, MR E.H.R. KELLY and MR J.A.G. McCOMISH for the respondent.  (instructed by Ken Cush & Associates)

GAGELER J:   Mr Walker, your written submissions in reply note a condition of the grant of special leave that you would be prepared to abide by.  Does that remain the case? 

MR WALKER:   It is a test case, it is fully appropriate, your Honour.

GAGELER J:   Thank you.  Mr Campbell, we would be assisted by hearing from you first. 

MR CAMPBELL:   Thank you, your Honour.  There is no dispute that there is an important area of the law that has been put forward by the applicant in his outline.  The only matter, we say, by way of resistance, is that with respect to this particular matter, the decision of the Court of Appeal and the primary judge are manifestly correct.

The applicant, we would respectfully submit, in order to overcome that submission, would need to demonstrate that the principle of vicarious liability is limited to the relationship of employer‑employee.  The relationship in question here is an ancient one which has its origins in canon law and is classically, as was found by the Court of Appeal at [129] of their reasons, a master‑servant relationship.  Many of the indicia of that relationship are analogous to an employment one, save that there was no contract of employment.

It is our submission that because of those circumstances, whilst there is lurking an important area of law for consideration, that this is not an appropriate vehicle for that to occur.  We have addressed this in our written outline.  It really is a matter for the judgment of the Court.  It is not something we really can say much more about, and it is not one of those cases that I think I need to address your Honours at length about.  Either you accept the proposition we are putting, or we accept that this is a case that requires a look.  However, we maintain the position that it is manifestly correct.

GAGELER J:   Mr Campbell, at some stage in the examination of the principles of vicarious liability, there will be a need, perhaps, to consider the relationship between those principles and the principles that govern non‑delegable duties.

MR CAMPBELL:   Yes.

GAGELER J:   Is this an appropriate vehicle for those more general considerations to be teased out?

MR CAMPBELL:   It may be, your Honour.

GORDON J:   The reason why we raise it, Mr Campbell, is that, at least on one reading of some of the approaches and passages in the primary judge’s reasons, they seem more directed at principles of non‑delegable duty.

MR CAMPBELL:   Yes, I concede that, your Honour.  And it may be that the question that was addressed in Lepore in the context of that case needs revisitation as a parallel proposition to the principal point the subject of this application.  If leave were granted, we would accept you would need a notice of contention, your Honours.

GAGELER J:   Yes.  Well, thank you, Mr Campbell.  On the condition that the applicant pay the respondent’s costs of and incidental to this application and to the appeal, irrespective of the outcome, special leave to appeal is granted in this matter.

MR WALKER:   Please the Court.

MR CAMPBELL:   Thank you, your Honours.

GAGELER J:   This would be at least a day, I think, gentlemen.  Mr Walker?

MR WALKER:   Yes, your Honour, though I am myself confident that it would be at most a day.

GAGELER J:   Mr Campbell?

MR CAMPBELL:   Yes, I would agree with that estimate, your Honour.

GAGELER J:   A day, yes, very well. 

The Court will now adjourn until 10.30 am.

AT 9.36 AM THE MATTER WAS CONCLUDED