Brodie & Anor v Singleton Cncl, Ghantos v Hawkesbury C Cncl

[1999] HCATrans 449

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S44 of 1999

B e t w e e n -

SCOTT MUNN BRODIE

First Applicant

LONDAY PTY LIMITED

Second Applicant

and

SINGLETON SHIRE COUNCIL

Respondent

Office of the Registry
  Sydney  No S69 of 1999

B e t w e e n -

CATHERINE GHANTOUS

Applicant

and

HAWKESBURY CITY COUNCIL

Respondent

Applications for special leave to appeal

GAUDRON J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 DECEMBER 1999, AT 10.32 AM

Copyright in the High Court of Australia

_________________

MR D.F. JACKSON, QC:   I appear with my learned friend, DR J.P. BERWICK, for the applicants in Brodie v Singleton Shire Council.  (instructed by Craddock, Murray Neumann)

MR L. KING, SC:   May it please your Honours, in that application, I appear with my learned friend, MR W.S. REYNOLDS, for the respondent.  (instructed by Moray & Agnew)

MR A.S. MORRISON, SC:   If your Honours please, I appear with my learned friend, MS M.C. WALKER, in the matter of Ghantous.  (instructed by Stacks the Law Firm with Goudkamp Mahony)

MR D.L. DAVIES, SC:   If your Honours please, I appear with my learned friend, MR M.T. McCULLOCH, for the respondent.  (instructed by Phillips Fox)

GAUDRON J:   Yes, thank you.  Could these applications be heard together in the sense that we hear the applicants first in each matter and then the respondents?

MR JACKSON:   I do not see why not, your Honour.

GAUDRON J:   Yes.  Does it trouble you?

MR MORRISON:   Certainly, your Honour, that seems to be ‑ ‑ ‑

GAUDRON J:   Any opposition to that?

MR MORRISON:   No.

GAUDRON J:   I take it you are each familiar with each other’s cases, are you, in a sense?

MR JACKSON:   Yes, your Honour.  The issue which, it is submitted, merits the grant of special leave is whether the defence of nonfeasance should remain for road authorities or that the test should be simply negligence, in all the circumstances.  May I, in dealing with this application, refer to the matter in two stages:  first, the suitability of the case as raising the issue and, secondly, the factors which, in our submission, militate in favour of reconsideration of the principle.  If I could turn to the question of suitability first of all.

GAUDRON J:   Yes.

MR JACKSON:   In our submission, this case does raise the issue directly.  The basis upon which the Court of Appeal found against the plaintiffs was that the case was one of nonfeasance.  May I give your Honours the references in that regard:  page 41, paragraph 41 where your Honours will see a reference to the concept of nonfeasance as being the relevant test and then a reference at page 42 to Buckle.

GAUDRON J:   That principle seems to have – I suppose I am taking you off at a time when before even there had been developed a notion of a duty of care to warn even, I suppose.

MR JACKSON:   Yes, your Honour.

GAUDRON J:   Yes.

MR JACKSON:   What it seems to have been, if I could perhaps put it in this way, that for reasons, perhaps commercial, in the United Kingdom, or perhaps historical, perhaps relating to the fact that the ratepayers personally had to pay for the maintenance of structures, some of which must have been very old indeed, the situation which obtained was that the law, in effect, more or less became stultified, as we would put it - perhaps “fixed” others might say - at a certain point.  That was adopted in Australia in the two decisions of the Court to which reference is made in the application book, but, adopted at a time when the development of Australia, both in terms of the nature of payments for the maintenance of the road systems throughout the Commonwealth, on the one hand - it was not terribly established - and on the other hand when the state of development was not terribly advanced, if I could put it that way.  Your Honour’s views may well differ about that, of course. 

In relation to that, what one does see is that today the concept of federal funding, for example, for local authorities is something that is commonly adverted to from time to time and the degree of funding by State governments to authorities is something that is ‑ ‑ ‑

KIRBY J:   In the end, though, somebody has to pay.  It may not be the ratepayers but it is the taxpayers.

MR JACKSON:   Of course, your Honour, yes.  But, your Honour, could I just say this, one of the highly unsatisfactory elements of it is that in cases like this the person who pays is the person who falls through the bridge or the person who is injured and cost of the other possibilities are, I suppose, on the one hand, the ratepayers of the area whose bridge it is and on the other hand the larger community or insurers, but one way or another, the cost is of course something that has to be distributed.

KIRBY J:   But if I sort of see where you are going down this highway and ultimately aiming to end up, it is, is it not, that people can drive 32 tonne trucks over 15 ton bridges and then say that the community is accountable to them for it and say that that is negligence on the part of the community for not having safeguarded him.  Now, I realise the sign was before one bridge and there was a second bridge but that is really – it has enormous economic ramifications.

MR JACKSON:   That really is, with respect - your Honour, it may or may not be true but it may be just a question of who is to pay.  Now, what I mean by that is that it is an unsatisfactory situation, in our submission, if – and, your Honour, one is talking about 22, not 32 tonne vehicles, but if there is an unmarked bridge that other vehicles are going over one would expect the local authorities to know where construction work of a major kind is going on, large vehicles are being allowed to use it and where the authority has a program of inspection to have a system of liability which depends on whether one replaces the planks, leaving underneath the supports which are unsatisfactory, and which one could easily ascertain to be unsatisfactory, in which case there is – depending on whether one replaces the unsatisfactory supporting things or one replaces the planks that go on top of them is an unsatisfactory test, with respect, when one has to have people who, when one has people suffering from severe personal injuries in consequence of it.

GAUDRON J:   Mr Jackson, perhaps I can interrupt you there to indicate that if – and this is subject, of course, to what the respondents wish to say –

you were to be successful in any measure of this application, we anticipate it would be to have your application for special leave referred to a Full Bench for argument at that stage as if on full appeal rather than to attract the grant of leave itself.

MR JACKSON:   I take it your Honour would be basing that on the assumption there would be a full argument as if there were to be an appeal, if the Court required it, on that occasion, yes.

GAUDRON J:   Yes.

MR JACKSON:   Your Honour, we would be content with that.

GAUDRON J:   Yes.  In that event, perhaps I could interrupt you to ask Mr Morrison to convince us that his case is suitable for that course, too.  Do you want to come to lectern or are you are happy there?

MR MORRISON:   That might be convenient, thank you, your Honour.  The case that is raised in Ghantous is a little different because in addition to the issues raised in the first case of whether or not the rule has application in the State of New South Wales as at 1823 and 1828 and in addition to the question as to what constitutes nonfeasance, both of them very vexed questions.  In addition, there is an issue which is raised as to the width of the application of the rule because there is a long historic basis for suggesting that the rule should be as narrowly confined as possible.  It is the road, qua road, in the English Court of Appeal, the road proper says the Full Court of the Supreme Court of New South Wales and in terms adopted in the High Court of Australia and the Privy Council.

HAYNE J:   But is there not in Ghantous a further question, namely, even if these rules were entirely swept aside, where would the plaintiff have stood on the application of ordinary principles of negligence?

MR MORRISON:   That was determined very clearly by his Honour the trial judge when he said that, in terms, it was a pity that the Council’s maintenance program “did not operate to keep the footpath in less hazardous condition”.  Those were his words.

HAYNE J:   Yes.  Why does that amount to a finding of negligence?

MR MORRISON:   Because he then went on to say, “because of the application of the nonfeasance rule I find against the plaintiff.”

GAUDRON J:   Well, you have to assert a duty, in the circumstances, to maintain.

MR MORRISON:   Indeed.

GAUDRON J:   And you cannot succeed without establishing such a duty.

MR MORRISON:   We only have to establish that it was an area within the Council’s care and control, that they should have reasonably anticipated that we would be walking in that area and that, accordingly, the general duty of care would apply.

KIRBY J:   You seem to be arguing, Dr Morrison, that yours is a very special case.  That would seem to be a reason for denying you special leave or to say, “Well, stand over the special case until the guidance in the first case comes down”:  Brodie.

MR MORRISON:   No, your Honour, because of this ‑ ‑ ‑

KIRBY J:   If a Full Court is to hear the matter surely the Full Court would not be dealing with the specialities of your case.

MR MORRISON:   It would not need to, for this reason.  The extent of the applicant of the misfeasance – nonfeasance rule – is one of the difficulties of the rule.  It is fundamental to it.  Much of the litigation in this area has related to what constitutes nonfeasance – that is the question raised in both of these cases – and what constitutes the area to which the rule applies.  Those are areas which are squarely raised by Ghantous.  Ghantous was a case in which the trial judge went on to assess damages in anticipation that this matter might go elsewhere.  The matter would not need to go back anywhere because, quite clearly, all the findings are necessary there in the event that we succeeded on this issue generally for the matter to be ultimately determined in this Court.  But, can we say something about the general principles and the importance of them to supplement what my learned friend just said a moment ago, because the historic basis of this ‑ ‑ ‑

GAUDRON J:   I do not think we need to hear you on that, we just need to be satisfied that yours is a suitable vehicle.

MR MORRISON:   Thank you, your Honour.  The basis on which we say that it is is because it squarely raises the issue as to what happens when a road authority is also an authority in other areas, a matter in which the Privy Council, the Court of Appeal in England have spoken, prior, of course, to the sweeping away of the law in England.

GAUDRON J:   Yes.

KIRBY J:    You have made this point.  You say that the decision on the road authority is relevant to you but it is not conclusive of your case because you are not a road.

MR MORRISON:   Indeed.

KIRBY J:   We know that.

MR MORRISON:   The point is this, that the decision of the Court of Appeal would have the effect of extending the road authority decisions to a whole category of other cases where previously the authorities have held they did not apply, drainage cases, traffic cases.

KIRBY J:   The argument that you advance would have the effect of extending the liability of ratepayers enormously, potentially, but that maybe as a matter for the Full Court and I can repeat my concerns in that respect.

MR MORRISON:   Indeed, but that would only be the case if councils in respect of some of their activities are to have an immunity which does not apply in other areas of their activities to take reasonable care for those who choose to walk in their municipality and that being based upon the immunity of the men of the hundred in respect of their obligation to repair the roads of the shire.

KIRBY J:   What about the women of the hundred?

GAUDRON J:   We were exempt from such arduous work in those days.

MR MORRISON:   Indeed.

GAUDRON J:   Yes, I do not think we need trouble you further at this stage, Mr Morrison.

MR MORRISON:   Thank you, your Honour.

GAUDRON J:   Mr King, you have heard what we have said.

MR KING:   Yes.

GAUDRON J:   We would be mind only to refer the application to a Full Court.

MR KING:   Your Honour, we have no difficulty with that.  Our position is the same as Mr Jackson’s.

GAUDRON J:   You would be happy with that course.

MR KING:   Yes.

GAUDRON J:   What about you, Mr Davies?

MR DAVIES:   Our difficulty is the point that Justice Hayne raised, really, that there was no finding that counsel was negligent but for the nonfeasance, the immunity that the Council enjoys, and the reason for that is that ‑ ‑ ‑

GAUDRON J:   I am sorry, perhaps ‑ ‑ ‑

MR DAVIES:   At the trial, your Honour, there was no evidence led about Council resources and the like, such matters as were discussed by this Court in Pyrenees and the trial judge does not enter into that area at all.  The passage is on page 14 of the application book where, having completed his discussion of the legal position with nonfeasance, says:

It is regrettable that the Council’s program of maintenance did not operate to keep the footpath in less hazardous condition but that failure to maintain is, by definition, nonfeasance.

Now, that is not, in our submission, a finding that but for nonfeasance the Council was negligent.

KIRBY J:   It looks a bit like that.  It is saying, “If only I did not have this barrier of nonfeasance, if only that was not in my way, I would, because it is regrettable that the program did not operate to keep it less hazardous, find that that was negligent”.  Otherwise, why would his Honour bother saying such a thing?

MR DAVIES:   Well, trial judges, when finding for defendants, often make statements of regret that the plaintiff is unsuccessful in a case.

KIRBY J:   Yes, but the statement of regret is posited on and only on the supposed nonfeasance distinction.

MR DAVIES:   Your Honour has to find, by implication, that there is negligence against the Council arising out of that statement.

KIRBY J:   I think the point you make, and it may be a notice of contention point, I do not know, is that even if the misfeasance-nonfeasance distinction is abolished there are still facts to be found in your case that would require retrial of the matter on correct legal principles.

MR DAVIES:   That is precisely right, your Honour.

KIRBY J:   And that the plaintiff does not win on these findings because there was no finding that but for the nonfeasance rule there was negligence.  There is no affirmative finding of that.  Well you have made that point.

MR DAVIES:   Yes.

KIRBY J:   It may be a notice of contention, but I am not sure.  I do not think it is because – well, perhaps it is because you are saying, “We could have won, any way, on another legal point, namely, no general evidence”.  It is up to you.  I have raised the question.

MR DAVIES:   It is a difficult one because the evidence was not led because the nonfeasance argument was put and with that covering we did not need to lead the sort of evidence that is discussed in Pyrenees and other cases about resources.

HAYNE J:   But, all these points, if open to you now, would remain open to you, would they not, on referencing to a Full Bench?

MR DAVIES:   They certainly would remain open to us, your Honour.

HAYNE J:   Yes.

GAUDRON J:   Gentlemen, there will be a reference of both applications to a Full Bench of the Court, the parties to argue the applications as if on appeal.  I take it there is no difficulty of the matters being heard together?

MR MORRISON:   Not on our part, your Honours.

MR JACKSON:   No, your Honour.

GAUDRON J:   And, I take it you would be able to cooperate as to a useful allocation of time and so forth?

MR JACKSON:   Your Honour, I was just going to ask one matter, if I may?  Where said applications in the past have been referred to the Full Court, a course that has been followed sometimes has been to have also the appeal book to the intermediate appellate court reproduced for this Court.

GAUDRON J:   Yes.

MR JACKSON:   We would propose to do that, your Honours, but leaving out of account the material that related to, for example, damages, and other irrelevant matters.

GAUDRON J:   Yes.  That would be wise in both cases, I think.  Would both matters be able to be concluded in a day, do you think?

MR JACKSON:   I think it is a little more.  I think it is a day and a half, your Honour.

GAUDRON J:   Yes.

KIRBY J:   Once Dr Morrison gets into the old hundreds we will be there for hours and hours.

GAUDRON J:   Yes, with ‑ ‑ ‑

MR MORRISON:   I notice the Supreme Court of Canada in 1911 managed to deal with it in rather less than a day of argument in getting rid of it there.

KIRBY J:   They were robust times, Dr Morrison.

GAUDRON J:   Thank you.

AT 10.51 AM THE MATTER WAS CONCLUDED