Buckland and Ors v State of New South Wales S86/2000

[2000] HCATrans 761

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S86 of 2000

B e t w e e n -

GEORGE SACKVILLE COTTER BUCKLAND, JESSIE OLIVE BUCKLAND, MARTIN JAMES BUCKLAND and PENELOPE IRENE BUCKLAND

Applicants

and

THE STATE OF NEW SOUTH WALES

Respondent

Office of the Registry
  Sydney  No S85 of 2000

B e t w e e n -

GEORGE SACKVILLE COTTER BUCKLAND, JESSIE OLIVE BUCKLAND, MARTIN JAMES BUCKLAND and PENELOPE IRENE BUCKLAND

Applicants

and

KATENA PTY LIMITED

First Respondent

PETER BRYANT SCHAFFERIUS

Second Respondent

ROBERT DEAN SAWLEY

Third Respondent

Applications for special leave to appeal

GAUDRON J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 DECEMBER 2000, AT 10.01 AM

Copyright in the High Court of Australia

__________________

MR B.M. TOOMEY, QC:  May it please your Honours, I appear with my learned friends, MR N.M. CARNEY and MR A.C. CASSELDEN for the applicants in both cases.  (instructed by Matthews Williams)

MR J.S. COOMBS, QC:  If your Honour pleases, I appear with my learned friend, MR D.L. RONZANI, for the respondent, the State of New South Wales.  (instructed by the Crown Solicitor’s Office)

MR M.L.D. EINFELD, QC:  May it please your Honours, in the second case I appear with my learned friend, MR T.J. MORAHAN, for the respondents.  (instructed by Justin F. O’Sullivan & Edgar)

GAUDRON J:   Yes, thank you.

MR COOMBS:   Can I tell your Honours that in the Court of Appeal, the listing was in reverse order.  My learned friend and I agreed that he should go first if that is convenient to your Honours, to deal with the matters in that ‑ ‑ ‑

GAUDRON J:   We will let Mr Toomey go first.

MR COOMBS:   We will let Mr Toomey go first, of course, your Honour.

MR TOOMEY:   How very disappointing.  Your Honours, one is always aware of Marvell in this Court.  You know, “at my back I always hear Time’s winged chariot hurrying near”.  May I ask your Honours, do we have 20 minutes in each application?

KIRBY J:   Half an hour altogether.

GAUDRON J:   Half an hour.

MR TOOMEY:   That is very satisfactory, thank you, your Honours, settled.

KIRBY J:   We were always happy to do that.

MR TOOMEY:   Yes, your Honour.  Your Honours, these cases arise out of the operation in New South Wales of contract harvesters who brought headers into the State from Queensland.  The headers were brought from an area which is known to be infested with the weed, parthenium, which has very serious consequences for land and which has infested huge areas of south-eastern Queensland.  To enter New South Wales, it is necessary, under Ordinance 50 of the Local Government Act, that the headers be inspected, or prescribed agricultural machinery which includes headers, at one of a named known border posts.

The headers in this case were brought into New South Wales on 9 November 1992 through Mungindi and were there passed by an inspector named Billing.  The headers then worked in northern New South Wales and four or five days before 3 December 1992 they began work on the property of the applicants, Waverley, which is outside Condobolin, about 40 kilometres away from Condobolin.  They worked there until 3 December, and on 3 December they began to strip the paddock known as the “650 paddock” because it was 650 acres.  I am sorry, I have said there were two headers, your Honour.  One of them began work on the 650 paddock.  Before the other began, work was done on it beside the crop for a period of half to one hour.

GAUDRON J:   Well, does the evidence go so far?

MR TOOMEY:   Yes, your Honour, there is a finding to that effect.

GAUDRON J:   Do you want to take me to it?

MR TOOMEY:   Yes, your Honour.  Could I come back to it, your Honour?  We will look it up.  But I would ask your Honour ‑ ‑ ‑

GAUDRON J:   Take your word.

MR TOOMEY:   To assume that that is the case.  The work was used as the basis for a claim by the plaintiff in the trial that some particular work had been done, replacing of some particular work.  That claim reinforced by evidence that the part which it was claimed had been replaced, had been bought at about that time at a local agricultural supplier.  His Honour accepted the evidence of the respondent, Peter Schafferius, that, in fact, that had been merely to replenish his normal maintenance stores and that, indeed, no such replacement had taken place.

His Honour made a finding that work of a non-routine nature had been performed but he was unable to say what it was.  That header then entered upon the crop and two years later, in a configuration which coincided more or less with the configuration in which that header had cut, and it was separate from the other headers so it could be identified, parthenium weed was identified.

GAUDRON J:   And you have concurrent findings on causation.

MR TOOMEY:   We have, your Honour.

GAUDRON J:   So you need not trouble yourself with that.

MR TOOMEY:   Thank you, your Honour.  As your Honour says, causation has been found.  The question which was agitated at trial in the case against the contract harvesters was whether or not there had been any negligence in the doing of the work beside the crop or in the failing to prevent that work, even if not negligently done, having the effect of dislodging parthenium so it could be spread into the crop.  Now, it is said, in the personal respondent’s submissions, that that case was not run.  But may I take your Honours to page 5 of the application book, at line 30:

By way of an amendment to the Statement of Claim at the trial it was further alleged that the first and third defendants knew or ought to have known that to repair, work on or clean the header in the plaintiff’s paddock would dislodge parthenium seed, enabling it to fall from the header and to spread on the plaintiffs’ property.

So we say it is plain that that case was run and, indeed, if one then goes to page 29, his Honour’s finding ‑ ‑ ‑

GAUDRON J:   That is the only case you seek to make now, is it?

MR TOOMEY:   It is the only case against the ‑ ‑ ‑

GAUDRON J:   Personal ‑ ‑ ‑

MR TOOMEY:   Against the personal respondent ‑ ‑ ‑

GAUDRON J:   The headers ‑ ‑ ‑

MR TOOMEY:   Yes, your Honour.  In the light of some evidence in the trial, I concede that we cannot make a case in respect of the bringing of the header onto the property.

GAUDRON J:   Also, you do not seek to make a case of negligence in the performance of the work, if any, that was done.

MR TOOMEY:   No, your Honour.  We cannot because we were unable to prove what it was ‑ ‑ ‑

GAUDRON J:   Yes, well, then, the critical thing is this finding that I asked you about earlier, that work was done on the header in that paddock.

MR TOOMEY:   Yes, your Honour.  There is a finding at 29, your Honours, at line 37, but there is a more specific finding which my junior is digging up:

On the findings of fact already outlined above, I am satisfied that work of some kind was done on the second header on the morning of 3 December, 1992 before the header proceeded to assist in the completion of the stripping of the 650 paddock and that in the course of that work, parthenium seed was dislodged and subsequently spread as the header worked the paddock.

GAUDRON J:   This case, though, does not – was it the subject of decision, as such, this head of negligence?

MR TOOMEY:   Yes, your Honour, it was the basis of his Honour’s finding.  I am sorry, can I take your Honour to page 19, line 40, his Honour makes the finding, and at line 49, your Honour will see - his Honour finds that the work was done on the header and at 49 he said:

It subsequently joined the first header in stripping the oat crop, somewhere between one half and one hour after the first header had started.  During that time men were climbing over the machine but there is no evidence establishing what they were doing on the machine.

But at page 29, your Honours, his Honour made the finding at line 37:

On the findings of fact already outlined above, I am satisfied that work of some kind was done on the second header on the morning of 3 December, 1992 before the header proceeded to assist in the completion of the stripping of the 650 paddock and that in the course of that work, parthenium seed was dislodged and subsequently spread as the header worked the paddock.

Now, can I just pause there.  As to the finding that that work dislodged the seed, his Honour found that.  Justice Foster accepted that finding.  Justice Giles said, for the purposes of his judgment, that he assumed that fact.  Justice Rolfe dissented from it and said that it could not be found.

GAUDRON J:   But that does not seem to be – the finding of negligence there, Mr Toomey, was “in failing to take adequate steps to prevent escape from the header”.

MR TOOMEY:   That is so, your Honour.

GAUDRON J:   As I understood what you had said earlier, your case in negligence is doing work on the header on the 650 paddock in circumstances in which the personal respondents knew or ought to have known that it might result in the dislodgment.

MR TOOMEY:   That would not make a case for us, your Honour.

GAUDRON J:   What would not?

MR TOOMEY:   Those facts alone, because it was an action in tort and without some damage, dislodging the seed in the header would have created no case.  It is only then proceeding onto the crop without doing something to prevent the spread that made our case.

GAUDRON J:   But, as I understood your head of negligence now, the negligence which you now assert, it is doing the work on the header in the 650 paddock.

MR TOOMEY:   No, your Honour.  And then failing to take steps to prevent the seed so dislodged being spread through the paddock.

KIRBY J:   Was it theoretically possible that work could have been done without dislodging the seeds because, if it is not, then it is all of a one, is it not?  If you bring a header down from a weed‑infested place, you do work upon it which has the propensity to dislodge seeds, then the natural consequence of that, and the foreseeable consequence, is that you are going to spread those seeds to the creation of the problem of weeds in the farm or property on which you perform the work.

MR TOOMEY:   Yes, your Honour.  I would not go so far as to say that the evidence established that it had to result in the weed being spread but, in our respectful submission, it was plainly foreseeable that had the seed been dislodged by the work, that it may be spread through the crop.

KIRBY J:   Is there a novus actus question here, that the person or defendant was entitled to take the view that having passed the inspector, that there was no possibility of dislodging of the seed?

MR TOOMEY:   Not so, your Honour.

GAUDRON J:   Is there evidence about what steps might have been taken?

MR TOOMEY:   The general evidence, your Honour, was ‑ ‑ ‑

KIRBY J:   Dieseline, is it not?

MR TOOMEY:   I am sorry?

KIRBY J:   Dieseline – spray it with dieseline.

MR TOOMEY:   Yes, that is correct.

GAUDRON J:   Spraying what?  I did not understand this.  Was it to spray the ‑ ‑ ‑

MR TOOMEY:   You spray the intestines of the machine, your Honour.  It sterilises the seed, it kills the seed.

GAUDRON J:   What would that do to the oats when they were stripped?

MR TOOMEY:   Well, that it would not, we would hope, affect the oats, your Honour.  There is no evidence that it would and the evidence was that that was a standard method of cleaning the ‑ ‑ ‑

KIRBY J:   Presumably it is allowed to dry and once dried it looses its toxic capacity with the oats.

MR TOOMEY:   It is of the consistency of kerosene, slightly more viscous than petrol, but it is volatile and, of course, it would evaporate, and we are talking about Condobolin in early December, so one would assume that it would evaporate very quickly, that is, if it ever actually hit the target it was aimed at.

GAUDRON J:   There is evidence, though, as to a practice of spraying, which – the reason I ask this is because the findings do not seem to me to be very clear on this.  One would need to establish a negative causation, as it were, to establish that those procedures would have been effective and that I do not see.

MR TOOMEY:   First, can I say this?  There was ample evidence in the case from the experts that one way of cleaning a header – that it was almost impossible to clean all the seed from a header but you could neutralise it by spraying it with dieseline which sterilised the seed.  On page 30, at line 14, his Honour sets out part of the contents of a pamphlet published by the State of New South Wales, and at line 18:

However, what was not put to him was the footnote to the list which required that ten of the nineteen points “must be thoroughly sprayed with diesel to sterilise weed seed material that may be trapped in cavity areas”.

KIRBY J:   Now, Mr Toomey, all of this is very interesting and it sounds as though it involves reams and reams of fact, but, I mean, we cannot deal with every factual case, or alleged factual error.  What is the point of principle and importance?

MR TOOMEY:   Well, your Honour, in the first place, it is of very substantial importance to New South Wales farmers because much of the contracting done in New South Wales is done by Queensland harvesters.  In the second place, in respect of the State, it raises an important question as to the extent of the statutory duty imposed on the State under Ordinance 50, and I will take your Honours to that.  If that were being dealt with, in our respectful submission, both cases ought to be dealt with because they arise out of the one set of facts and the one damage.

GAUDRON J:   I do not know that that is a proposition that necessarily advantages you.  The converse might equally be true.

MR TOOMEY:   Well, I would be surprised, with great respect, if that were so.  If we were entitled on one, I would think that it would not be something your Honours would do to deny us that right because we were not entitled on the other.

GAUDRON J:   No, I am just saying your submission is not necessarily ‑ ‑ ‑

MR TOOMEY:   None of my submissions are necessarily right, your Honour.  Your Honours, can I take you to what we say was a very serious failing in the judgment of the Court of Appeal?

GAUDRON J:   Before you do that, can you satisfy me that you have all those findings at first instance?  Now, when I look to this question of diesel, the use of diesel, that seems to be at the border, was it, and then you say – that seems to suggest that there was not cross-examination about the use of diesel.

MR TOOMEY:   Your Honour, that related to the use by the defendants of diesel before bringing the header into New South Wales, when they cleaned the header on the Queensland side of the border before bringing it into New South Wales.  There was no evidence that diesel was used.

GAUDRON J:   Is there evidence that it was not used?

MR TOOMEY:   No, the evidence was silent but ‑ ‑ ‑

GAUDRON J:   Because one would think, if diesel were effective, totally effective, and this is the negative causation again, if it had been used at Mungindi, there would have been no need to use it at Coonamble.

MR TOOMEY:   Well, that, indeed, is part of our case against the State, because there was diesel available at the border to be used.  Your Honour, can I say this?  The evidence was, and I will take your Honour to it later, that diesel sterilised the seed so as to neutralise it.  This seed came, and as your Honour said, we have a finding on causation, this seed came from this header and we say it must be inferred that it had not been sprayed with diesel otherwise it would have been neutralised.  There was no evidence from the personal defendant, Schafferius, who gave evidence of what he had done, that any diesel had been used.  From those circumstances, we would say it was clear that it had not.

As to the question of whether the work done on the header beside the crop released the seed, Justice Foster said at page 132, that having regard to the fact that this header had been in New South Wales since 9 November, that it had worked on other properties in New South Wales without dropping parthenium seed, that it had stripped other paddocks on the Buckland’s property and had not dropped parthenium seed, that logic demanded an explanation as to why it was dropped on the 650 paddock and ‑ ‑ ‑

KIRBY J:   They seem fairly reasonable propositions.

MR TOOMEY:   With great respect, we would say that is so.  The view taken by Justice Giles and Justice Rolfe was that unless we prove that the work done on the header beside the crop was done negligently, we could not succeed.  Our case was that if we proved that work had been done which, in fact, dislodged the seed, even though we could not say exactly what the work was, it was open to infer that it was negligent to do such work without taking steps to make sure the ‑ ‑ ‑

GAUDRON J:   But let me just check those steps because there seems to me to be a gap in some of the findings.  Are you saying that it should have been sprayed with diesel before doing any work?

MR TOOMEY:   After, your Honour.

GAUDRON J:   Well, it would then be the seeds would then be dislodged.  The wind could carry them hither and thither.  I know they did not, but ‑ ‑ ‑

MR TOOMEY:   No.  I am sorry, I do not quite follow that, your Honour.  What we are suggesting is that the dislodgment which happened was not from the machine but within the machine in such a way that the vibration of the operation of the header in the crop caused it to spread.

KIRBY J:   Was any other theory propounded, namely, that because of the interval, that somehow the header had picked up seed within New South Wales?

MR TOOMEY:   There was a case very strongly run by the defendants that the seed was present in the paddock and was merely spread by the header in that configuration, but that was rejected by his Honour and rejected by all the judges in the Court of Appeal.

GAUDRON J:   So what you are ‑ as against what we will call the private respondents, what your case really comes down to is that the Court of Appeal failed to correctly deal with the respondents’ case on the appeal to it.

MR TOOMEY:   That is correct, your Honour.  It goes one step further.  Justice Rolfe, at pages 99 and 100, with great respect, made findings which, in our respectful submission, are clearly wrong and which were the foundation of his judgment on this point.  At paragraph 122, point 31, on page 99, his Honour said this – I am sorry, I should take your Honours to line 22:

As no facts were found to establish what was done on the second header, which could cause Parthenium seed to escape, and as it was not suggested that the respondents could rely on res ipsa loquitur, I do not see how working on the header, without more, could be held to amount to negligence on the part of Katena or, if it be relevant, Messrs Schafferius and Sawley.

Further, the negligence was said to be in failing to take adequate steps to prevent the escape of Parthenium seed.  His Honour made no finding as to what steps should have been taken, nor whether they had or had not been, nor how this constituted negligence.  His finding assumed that that failure, without more, constituted negligence, notwithstanding that there were no findings of the type to which I have referred nor of any activity by those for whom Katena was responsible, which dislodged or released seed.

On the next page, at line 26, his Honour said:

His Honour made no findings that there was negligence in failing to spray the seed to neutralise it.  Having regard to the minute quantity and the inability to see and identify the seed this is hardly surprising.

Now, your Honours, on page 29, what his Honour said was, at line 30 – he is talking about the circumstances, having referred to Burnie Port Authority Case and the dangerous nature of this seed:

There was, in such circumstances, an especially high standard of care imposed on the defendants to prevent the contamination of land in New South Wales from seed carried on their harvesting machinery.  This included steps to ensure that no work was done on the machinery once in New South Wales which might dislodge parthenium seed not removed by ordinary cleaning processes, or if such work was undertaken, steps would be taken to destroy or sterilise any dislodged parthenium seed.

GAUDRON J:   By diesel.

MR TOOMEY:   Well, your Honour, there was evidence you could use pre-emergent herbicides but the one which was commonly used was spraying by diesel.  It is in the light of that that one goes to line 42, after his Honour has found that the work done dislodged the parthenium seed:

I find that there was negligence on the part of the employees of the defendants, in failing to take adequate steps to prevent the escape of parthenium seed from the header, having worked on the header.

GAUDRON J:   Mr Toomey, could I just ask you to identify the proposed ground of appeal that deals with this issue because we have taken you away from your case against the State and you have very little time left?

MR TOOMEY:   I cannot even find it, your Honour.

GAUDRON J:   Draft notice ‑ ‑ ‑

MR TOOMEY:   Page 151, thank you.

KIRBY J:   Page 167.

GAUDRON J:   That is against the State.

KIRBY J:   I am sorry, yes.

MR TOOMEY:   Page 151, paragraph 2(a)(ii), your Honour.

GAUDRON J:   Now, that is really ‑ ‑ ‑

MR TOOMEY:   That is the case.

GAUDRON J:   That is the whole case, “Grounds”, (i)  ‑ ‑ ‑

MR TOOMEY:   Against the personal defendant.

GAUDRON J:   Grounds (i) and (iii) are for more abundant caution.

MR TOOMEY:   Well, (i) and (ii), your Honour, are really a composite because we need, of course ‑ ‑ ‑

GAUDRON J:   Well, you do not need “negligent in the performance of work”.  You have abandoned that case.

MR TOOMEY:   No, but, your Honour, we need foreseeability, that doing such work non-negligently might have dislodged some seed.

GAUDRON J:   Yes.

KIRBY J:   Do you overstate your obligations in (iii), “In holding that it was not negligent of the Respondents to bring onto the” – I see how you put it.

MR TOOMEY:   That is the one that I do not press, your Honour.

GAUDRON J:   But you similarly do not press (i) in terms ‑ ‑ ‑

MR TOOMEY:   That is correct, your Honour, except as it affects (ii).

GAUDRON J:   Well, you can give some thought to that.  May I suggest you move to your application against the State?

MR TOOMEY:   Thank you, your Honour.  Your Honours, Ordinance 50, clause 6 ‑ ‑ ‑

GAUDRON J:   We may have to give you a little more time.

KIRBY J:   There is a typical ‑ ‑ ‑

MR TOOMEY:   There is very high precedent for saying you may have another two minutes, your Honour.  I hope it is not ‑ ‑ ‑

KIRBY J:   You are always like this, Mr Toomey.

MR TOOMEY:   Your Honour has always been kind to me, however.

KIRBY J:   Reluctantly.

MR TOOMEY:   Clause 6, which is on page 5 of the ordinance print, your Honours, clause 6 subclause (1):

A person shall not, in any area –

(a)  transport; or
(b)  move or otherwise use,

a prescribed agricultural machine brought, after the commencement of this clause, from Queensland into New South Wales, unless a permit has been issued with respect to the machine under subclause (3) and the permit is in force.

Then subclause (3) tells you how you do it.  You produce the machine between sunrise and sunset at one of the named border stations and then, (4), which really governs the case, your Honours:

A border inspector shall inspect a prescribed agricultural machine produced for inspection under subclause (3) and shall issue a permit only if –

(a)  where the border inspection suspects that Parthenium weed is or may be present on or in the machine, the person seeking the permit treats the machine, in accordance with the border inspector’s directions, so as to remove any Parthenium weed to the satisfaction of the border inspection;
(b)  the border inspector is satisfied that the machine is free of Parthenium weed;  or
(c)  …..special circumstances ‑

Now, there is no basis in this case suggested for any special circumstances, so it was either (a) or (b).  The border inspector knew, because it is on the permit, that the home address of the contract harvester was Rolleston, which is right in the heart of the parthenium infestation area in Queensland.  He, as his Honour found, and as all three judges in the Court of Appeal found, was utterly unqualified to perform his task.  He had never seen parthenium.  He knew nothing about the working of a header and he had never seen inside a header, and he was the man entrusted with the task of ensuring, we say, the manifest purpose of the ordinance to prevent parthenium seed being carried into New South Wales on Queensland headers.  He performed an inspection which the private respondent said was 5 or 10 minutes and, in effect, waved them through.

GAUDRON J:   Now, what do you say is the negligence on the part of the State?

MR TOOMEY:   Your Honour, there are two bases of negligence, we say.  The first is failure to inspect because ‑ ‑ ‑

GAUDRON J:   Now, that is vicarious liability on the part of the State for its employee?

MR TOOMEY:   Yes, your Honour.

GAUDRON J:   So you are alleging, as it were, a duty against the inspector and vicarious liability?

MR TOOMEY:   Yes, your Honour.  He admitted that he really just poked around a bit.  He did not look into the intestines of the machine at all and, as I have said to your Honours, he did not know what parthenium seed looked like.  It had never been described to him and he knew nothing about the internal workings of a header.  However, he ought to have been on notice that it is virtually impossible to clean all parthenium seed out of a header and he should, therefore, have known or suspected, for the purposes of subclause 4(a), that parthenium weed was or might be present on the machine.  So he ought to have given directions so as to properly satisfy himself, as required by that subclause, that any parthenium weed had been removed.

GAUDRON J:   But you can only succeed on this, can you not – do you have another ground of negligence against the State?

MR TOOMEY:   Yes, your Honour, we do.

GAUDRON J:   But you could only succeed on this one, could you not, by a duty of care owed by the inspector to Mr Buckland?

MR TOOMEY:   Yes.

GAUDRON J:   You have to establish some sort of relationship.

MR TOOMEY:   Yes, we have to go to Chapman v Hearse, your Honour, and say, “Mr Buckland was a member of a class of people who could clearly be affected by the failure to allow” ‑ ‑ ‑

GAUDRON J:   But you would also have to go beyond that, would you not, almost to reliance on the inspection?

MR TOOMEY:   Well, in Crimmins, Justice McHugh has set out the requirements and one of them, I think the third one ‑ ‑ ‑

GAUDRON J:   Yes, but Crimmins was a different case.

MR TOOMEY:   It is not quite reliance, but it says that, effectively, there is a nexus between the failure and the loss.  I think, with respect, your Honour is right, it may not be quite reliance but you have to prove that there is a nexus between that happening and this happening to your property, and a foreseeable nexus, no doubt.  Your Honours, on that ground

there is a point that there was present at the border backpack sprays which could be used to spray dieseline.  They actually had them at the border post for that very purpose.  But there is no evidence that they were used or required to be used and the inference from the evidence as to what happened, the 5 or 10 minutes inspection, is that nothing was done.

The second point we make is this.  Since the purpose of the ordinance is to prevent parthenium weed being brought into New South Wales, if the inspector could not be satisfied that there was no seed in the header, he should have refused to permit it to enter New South Wales.  He had that right because clause (1) of the ordinance – I am sorry, subclause (1) of clause 4, your Honours, provides that it cannot come in without a permit and he will only give a permit if satisfied under subclause (4).

So he had the right to say, “You cannot take it in.  It has come from a parthenium area and I am not satisfied that it is free of parthenium seed”.  We say that he had to say that unless he sterilised it or demanded that the harvester sterilise it with the backpacks which were present at the border post.  That is our case against the State, your Honours.

GAUDRON J:   You do not have a second basis ‑ ‑ ‑

MR TOOMEY:   Well, the two bases are the failure to inspect and the failure to refuse to ‑ ‑ ‑

GAUDRON J:   But what I mean by that is, you do not assert negligence on the part of the State independently of any vicarious liability for the acts of the inspector.

MR TOOMEY:   No, your Honour.  May it please your Honours.

GAUDRON J:   Thank you, Mr Toomey.  Mr Einfeld, thank you.

MR EINFELD:   Your Honours, the fate of the two applications now before the Court, we would submit, need not be and, indeed, ought not be tied in any way.  Whereas there may be thought to be some point of principle or some point of law arising out of the construction or application of the ordinances, it is our submission that no question of law and no question of principle has been demonstrated in oral submissions by the applicant.

GAUDRON J:   All of which may be true, but what about the interests of the administration of justice if the Court of Appeal has simply failed to understand what was the applicants’ case?

MR EINFELD:   It has not and, indeed, the absence of any question of law or principle was demonstrated by the terms of the draft notice of appeal itself, leaving only a question of fact which may reflect itself in the way that your Honour ‑ ‑ ‑

GAUDRON J:   Well, a question of fact, in one sense, but really a question of the Court of Appeal’s exercise of its appellate powers.

MR EINFELD:   Yes, well, in our submission, as we will demonstrate, the applicant will not have demonstrated any, or indicated any, sufficient doubt about the correctness of the Court of Appeal’s decision.  Your Honours ought be aware of a number of the other facts proved to the satisfaction of the trial judge below and they are what were described in the principal judgment in the Court of Appeal as critical.

KIRBY J:   Just tell me what your theory is about how this seed, which comes from the place from which the header came and which was distributed in the farm in the pattern in which the header was used, the logic seems to suggest that it, therefore, came from the header, but not immediately or it would have manifested itself earlier.  Then there is the intervening activity on the header, so logic seems to suggest, unless it was caused by some seed picked up within New South Wales, which you propound and which was rejected, and there are concurrent findings we are told ‑ ‑ ‑

MR EINFELD:   Not quite.

KIRBY J:   Well, if there are not, then you may have a case, but otherwise logic all seems to point its icy finger at you.

MR EINFELD:   The case that was run by the header operators at trial was, among others, that the infestation had not been caused as asserted, but the seed had been picked up.  That was rejected and it is not part of the submissions we make.  The trial judge in the Court of Appeal concluded that the parthenium infestation was able to be traced back to the operation of this header on this occasion.  So there is no issue on this application as to that.  It was not so much a question at all of the fact that the parthenium seed was picked up after it crossed the border.  I do not think anybody propounded that – none of the witnesses, none of the parties.

The header had come from a heavily infested parthenium area, such was notorious.  One of the important factors established by the evidence was that the applicants, the owners of the property, were aware that this header had come from that area of infestation and also that it was likely, indeed, as some of the evidence, was impossible to completely rid the header by any means, including diesel, of being infected with parthenium seed. 

Now, your Honours, the competing scenario – I am sorry, I will go back one step.  There were competing theories as to how the infestation was caused by this header.  One was that, at some point – nobody quite knows where – some seed was dislodged, either at the site at which men were seen “clambering”, was the word used by the trial judge, over the machine and it was dislodged at that point and later spread by the wind or by other causes or, that is, dislodged, and as the header proceeded around the paddock it picked up that seed that had been dislodged and spread it as it went about its course, or it was still in the machine and was “trickling” out, was the expression used, as it proceeded around the paddock.  The difference is not significant for present purposes, either way. 

The reason it is not significant, your Honours, is this.  The overwhelming evidence, and evidence that his Honour accepted and was not challenged on appeal, was that the operators of the header, firstly, had not – I am sorry, I will go back.  The applicants here presented a case that the cause of the dislodgment was the replacement of parts.  That was its case at trial and that was the case which was rejected by his Honour.  The argument before the Court of Appeal was that any other basis of cause of dislodgment remained one of mere speculation.

Nobody was able to say, (a), what work was done on the header, and that is what his Honour found, namely, that whilst he concluded some work was done, he could not conclude whether it was routine servicing of a kind which had taken place on other properties south of the border or any other form of work whatever that was able to be identified as being a possible cause of dislodgment.  Secondly, and importantly, once the plaintiffs’ positive case of part replacement had gone, the plaintiffs themselves were able to adduce no other evidence as to the likely cause of dislodgment or where the seed had been located such as would have facilitated or enhanced the prospect of its being dislodged.

Thirdly, and most importantly, the evidence is that this seed is so minute that one even needs a microscope to see it.  The amount of seed which was said to have been capable of causing infestation was described as being less than half a thimbleful, so that the prospect that one could actually ever see, so as to take some remedial steps, parthenium seed, after it had been dislodged or as it was being dislodged, was non existent.

KIRBY J:   Well, that is in favour of the applicant but that does not mean that when you bring a header from  an area of Australia which is infested with this seed, that you do not have some obligation to spray the header.

MR EINFELD:   We had an obligation to take reasonable care to ensure that it was as free of parthenium as it reasonably could be.  There are concurrent findings, firstly, that cleaning a header so as to make it parthenium free is impossible, or borders on the impossible, was the finding his Honour made; that no procedure for cleaning this header could have been undertaken without, according to his Honour’s findings, “massive, and commercially unsustainable, expenditure of time and money” – that finding is at page 11 of the appeal book.

There was then a finding by the trial judge, not departed from on appeal and, indeed, not the subject of challenge, that no system of cleaning, however thorough, could ensure that the machinery was free of seed.  This evidence was given by the experts called by the plaintiff, the applicants here.  Most importantly, there was a finding of the trial judge, not disturbed on appeal, that the respondents had thoroughly cleaned the header after leaving the parthenium infested areas and before crossing the border in a manner consistent with the best practices in the industry and that the header had been cleaned to that standard.  That finding is, in its various forms, repeated at pages 20, about point 9, 21 and 22 of the application book.

GAUDRON J:   I suppose it really comes down to this.  If there was no duty to use diesel, or the equivalent, at the border, and one does not know what work took place in the paddock, what is there that attracted a duty of care to use diesel at that point?

MR EINFELD:   Well, whether it was at the border or anywhere else, the use of diesel was not confined to the border, we would have to accept.  It could have been used anywhere.

GAUDRON J:   No, but the finding is that there was no duty to use diesel at the border.

MR EINFELD:   Certainly.  Let me just say, there is a very good reason why there was never a duty to use diesel.  First of all, there was an acknowledgment, even in the dissenting judgment of Justice Foster, that the use of diesel was messy and was unwelcome by all in the industry in the sense that it was not reasonable.  Your Honours should understand that it was never put to the machine operators, in evidence, that they ought to have used diesel.  Most importantly, one would understand that the expert evidence called by the applicants was that the seed, this minute microscopic seed, that could have been dislodged on this occasion could have come from any part of the equipment whatsoever.

It may not have come from within what my learned friend called the intestines.  It could have been caught up under the tyres.  It could have come from the cabin in which the driver was placed, either as he left the truck, or by any other means.  It could have been dislodged as a door was opened.  It was impossible to know, because of the size of the seed, and the absence of evidence called by the applicants as to the means by which it could have been dislodged, other than in the manner their own experts described.  One cannot spray, sensibly, a driver’s cabin, naturally enough, with diesel.  That would mean the seats, the floors, any other part of the equipment.

There were 19 points identified in the pamphlet to which Mr Toomey drew the Court’s attention as being points at which the spraying of diesel might have been appropriate.  The evidence accepted by the trial judge was that, in accordance with the best practices prevailing at the time, the respondents had cleaned all of those points; not with diesel, because that was never raised in the evidence.  It was never suggested to the diesel operator, Mr Schafferius, that he ought to have sprayed with diesel.  Now, in the face of the findings to which we refer, that the farmers were aware of the risk of infestation of their paddock when they invited onto the premises this operator who had worked for them before, coming from the same area, with these headers, in the face of the findings of fact never challenged that there was no evidence as to what work, if any, was his Honour’s words at page 20 of the application book, at line 1.  Indeed, the passage my friend read:

During that time men were climbing over the machine but there is no evidence establishing what they were doing on the machine.

One is entitled to infer they were not sunning themselves, or something of the kind, but no evidence at all as to what was taking place.  In the face of a finding from the applicants’ own experts that no amount of cleaning could guarantee a parthenium-free machine, in the face of the finding that the respondents had, in fact, undertaken thorough cleaning of the machine in accordance with the best practices, was his Honour’s finding, we submit that the conclusions of the majority of the Court of Appeal were manifestly right, certainly, not such as have been rendered the subject of sufficient doubt to warrant the intervention of this Court, there is no point of principle or of importance, as suggested by my learned friend, as to the position of farmers in New South Wales generally because of the findings that these farmers knew that this particular machine had come from the parthenium infested area and that they were at the risk of infestation from the use of the respondent’s headers.  That finding is at page 26 of the application book at line 38. 

In those circumstances, your Honours, we would submit the case has no general importance.  It turns entirely on its own facts.  The conclusions of the court from whose decision this application is brought was manifestly right.  The question of diesel is, as it were, if I could be permitted the colloquial, a furphy, because ‑ ‑ ‑

KIRBY J:   So, on your analysis of the facts and of the findings by the primary judge, there is no basis in the evidence to conclude that even if the State had sprayed every header that ever came into the State at the border, that that would have found the thimbleful of seed in this particular header.

MR EINFELD:   Correct, and the half a ‑ ‑ ‑

KIRBY J:   Or that to require it, and require dislodgment and dismantlement of every header that came into the State, with no guarantee even then that you would succeed, would be an utterly unreasonable standard to impose and the law would not impose that standard.

MR EINFELD:   Correct.  The evidence of Mr Kelly, the plaintiffs’ expert whose evidence the trial judge accepted, was that even if you removed every nut and bolt at a cost which would exceed the cost of 10 brand new headers, you still could not indicate – it was still impossible to say that parthenium would have been removed and there was no evidence ‑ ‑ ‑

KIRBY J:   Does that warrant taking no steps of having Billing at the border who simply looks for 10 minutes and waves them on?  That is not your ‑ ‑ ‑

MR EINFELD:   I do not need to buy into that, but the point is that, not so much even if the State had not sprayed, but if we had sprayed at any point along the line, we would still have never got to the position, and there was no evidence to suggest we would have got to the position, that even if you had pulled the header apart and every bolt and every nut, was the evidence, and every tube, and undone every part of the header, including the inside of the cabin, underneath it, et cetera, et cetera, spent hundreds and hundreds of hours and spent more than what – you would not physically be able to clean a header properly.  It is very, very difficult to do.

We satisfied the best practices at the time.  In the absence of evidence that cleansing with diesel would have removed or killed off this particle or particles, the maximum of which capable of doing the damage was half a thimbleful. it may have been microscopic, in those circumstances, your Honour, we submit no question of law, no question of general importance, no – the Court could not be satisfied that there was sufficient doubt cast on the decision below and we submit the application ought be dismissed.

GAUDRON J:   Yes, thank you, Mr Einfeld.  Mr Coombs, we do not need to hear you.  Anything in reply to Mr Einfeld?

MR TOOMEY:   Yes, your Honours.  Your Honours, the first thing I want to say is this, that my learned friend has elided cleaning and sterilising.  Cleaning the header ‑ ‑ ‑

KIRBY J:   Yes, but if it is half a thimbleful and happens to be hiding under the driver’s seat and if you have to take the headers apart, and every nut and bolt, and you can even then not be sure.

MR TOOMEY:   No, your Honour, with great respect, that evidence went to cleaning, not to sterilising.  You can sterilise the machine by spraying it with diesel.  You cannot clean everything out because you cannot get into all the cavities, but you can spray diesel into all the cavities.  This is, in our respectful submission, the fallacy upon which my learned friend relies, and which he relief upon in the Court of Appeal.  The best practice cleaning was not enough because it was known it left seed.

KIRBY J:   But cleaning is designed, presumably, amongst other things, to sterilise.

MR TOOMEY:   No, to remove, your Honour, to remove.  Sterilising, in our respectful submission, was something quite different.  What his Honour found was that there was the best practice cleaning.  There was no evidence that any sterilisation had ever been done on this machine and, as I said, the inference to be drawn is that it had not because the seed was alive.

KIRBY J:   It still seems an unrealistic standard that you are imposing on the introduction of the headers if, according to best practice, every endeavour is made to remove from them the seed.  Then you are not imposing or suggesting a standard of reasonableness, you are suggesting a standard of absolute duty.

MR TOOMEY:   No, your Honour, with respect, we are not, but we are saying there was one further step which could have been taken and that was sterilisation.  In this case, because of the catastrophic consequences for the owner of farm land who gets parthenium, his land is quarantined.  There was evidence in the case that people will not buy land which has had parthenium on it.  Even when the parthenium has been cleaned out, people will not buy it.  So the effect of this is so disastrous ‑ ‑ ‑

KIRBY J:   Remind me of what the primary judge found about the sterilisation argument as distinct from the cleaning, if anything.

MR TOOMEY:   Well, your Honour, he had found, at page 29, at ‑ ‑ ‑

KIRBY J:   Did he find that either of the respondents, the State or the personal respondents, ought to have sterilised by dieseline?

MR TOOMEY:   Well, your Honour, he found, in our submission, at page 29, lines 30 to 45, that they should have sterilised.

KIRBY J:   I do not see that.

MR TOOMEY:   Well, at line 34:

if such work was undertaken, steps would be taken to destroy or sterilise any dislodged parthenium seed.

Then at 42:

I find that there was negligence on the part of the employees of the defendants, in failing to take adequate steps to prevent the escape of parthenium seed –

that is, because they had failed to destroy or sterilise the seed.  That was the very ‑ ‑ ‑

KIRBY J:   But your theory must, therefore, be that somehow, in the middle of a field in outback Australia, with the sun beating down, they take something apart and then you somehow have to get ‑ ‑ ‑

MR TOOMEY:   No, we do not say, with great respect, that that is the difference, your Honour.  We are not talking about dismantlement, we are talking about getting diesel and spraying it.  There is no suggestion that one has to dismantle the machine to do that.

KIRBY J:   But how is this sterilisation going to penetrate into the hidden cavities of the machine which, on the theory, somehow you have to explain, and it has never been explained, as to how the seeds were there but did not infest the earlier fields but did infest the particular field?

MR TOOMEY:   Your Honour, with great respect, it is explained in the judgment of Justice Foster.  At pages 133 to 137, he sets out, in extenso, the evidence as to what might have been done and the evidence as to the areas where seed might expect to have been found.  He deals with it at length and, in our respectful submissions, the probabilities are that had attention been paid to those areas by sterilisation, there would not have been any infestation of the crop.  May it please your Honours.

GAUDRON J:   Thank you, Mr Toomey.

So far as concerns the application against the State of New South Wales, there is no reason to doubt the correctness of the decision below.  So far as concerns the application against Katena Pty Limited, in our opinion the proposed appeal does not enjoy sufficient prospects of success to justify the grant of special leave.  Accordingly, both applications are refused with costs.

The Court will adjourn briefly to reconstitute.

AT 11.03 AM THE MATTERS WERE CONCLUDED