Comerford and Ors v RTA of NSW

[2002] HCATrans 79

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney-  No S113 of 2001

B e t w e e n -

WILLIAM KEVIN COMERFORD, KENNETH BRIAN COMERFORD, JOHN LEWIS HIRIAM COMERFORD trading as YURINGO PASTORAL CO

Applicants

and

ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES

Respondent

Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 MARCH 2002, AT 3.07 PM

Copyright in the High Court of Australia

MR S.Y. REUBEN:   May it please the Court, I appear for the applicants.  (instructed by Cordato Partners)

MR M.G. RUDGE, SC:    May it please the Court, I appear with my learned friend, MR D.A.C. ROBERTSON, for the respondent.  (instructed by the Crown Solicitor for the State of New South Wales)

GUMMOW J:   Yes, Mr Reuben.

MR REUBEN:   Your Honours, as a preliminary matter, we have to advise the Court of the status of the proceedings in the court below.

GUMMOW J:   Yes, I was wondering about that.

MR REUBEN:   Yes.  We filed an affidavit of Bernard Smith of 12 March 2002.  As your Honours would be aware, the Court of Appeal judgment, the subject of the application for special leave, was remitted back to the presiding judge to consider the question of adoption of the referee’s report in light of the Court of Appeal’s findings.  That matter has proceeded through the course of various directions hearings and ‑ ‑ ‑

GUMMOW J:   Let me just get this straight.  Looking at the application book starting at page 12, that is an order of March 2000, entered much later, made by Justice Hunter granting leave to adduce additional evidence, et cetera.

MR REUBEN:   That is so.

GUMMOW J:   Then it went to the Court of Appeal, did it not?

MR REUBEN:   That is so.

GUMMOW J:   And that is the orders at page 39, setting aside Justice Hunter’s orders and remitting to Justice Hunter .  Now, it is those orders on page 39 that founded the special leave application?

MR REUBEN:   That is so.

GUMMOW J:   Nevertheless, against that background, it went back to Justice Hunter and we have a judgment of his Honour which finishes up at page 84.  He indicates he is making certain orders but he is refusing the application to adduce fresh evidence.  That is at page 83, line 35.  And then earlier on in the judgment he refused leave to amend the pleading, did he not, at page 68?

MR REUBEN:   Yes.  That judgment ‑ ‑ ‑

GUMMOW J:   Then, going back to page 84, he relisted the matter for directions on 18 May 2001.  Now, what has happened since then?

MR REUBEN:   What has happened since then is that his Honour has, in effect, by his judgment, consistent with the decision of the Court of Appeal ‑ ‑ ‑

GUMMOW J:   What, some later judgment?

MR REUBEN:   Yes, a judgment which is annexed ‑ ‑ ‑

GUMMOW J:   This is in Mr Smith’s latest affidavit?

MR REUBEN:   Yes, your Honour. 

GUMMOW J:   Yes.

MR REUBEN:   He has regarded himself as limited by the Court of Appeal in terms of what he might find in relation to the liability consistent with the Court of Appeal’s decision and consistent with the authority in Brodie and Suttor v Gundowda, his Honour permitted an amendment to the pleading which his Honour has limited to what might be described as a “failure to warn” case or to limit the use of the bridge because of the serious nature of the condition of the bridge.

GUMMOW J:   Now, is the pleading here?

MR REUBEN:   The pleading is not within these papers, your Honour.

CALLINAN J:   Anyway, what resemblance did the pleading bear to what the referee decided?  Were there discrete issues that went to the referee, or what happened?

MR REUBEN:   No.  The case as propounded on the first reference before the referees was what was the cause of the bridge collapse, and that was matter which was determined by Referee Verge as being a toggle buckle failure of the bridge.  That meant, effectively, that the bridge slabs were under compression, one slab popped up ‑ ‑ ‑

CALLINAN J:   Well, I understand the nature of the issue, yes.

MR REUBEN:   The second case before the second referee, which was before his Honour Justice Hunter before him for adoption, concerned where the liability lay between the parties; where the liability lay as between the situation as to whether there was misfeasance on the part of the public authority in repairing the bridge in regard to the nature of the repairs that were conducted.  The case was conducted on what was essentially two grounds of misfeasance:  that they patched the bridge deck in a certain way or the rotation joints were incorrectly repaired.

His Honour in the course of the first judgment, the primary judgment, the subject of the appeal subject to special leave, considered there was a wider issue negligence of the kind that was at that time pending ‑ ‑ ‑

GUMMOW J:   Yes.  Well, it has now been decided.

MR REUBEN:   That is so. 

GUMMOW J:   Now, this very long judgment – I am not criticising it for being very long – but very thorough judgment of 20 November 2001, that takes into account, does it not, the intervening decision in Brodie?

MR REUBEN:   That is so.  That is correct.

GUMMOW J:   And there is an appeal against that application for leave pending against that to the New South Wales Court of Appeal.  So, that being so, what do you want to do about this application?

MR REUBEN:   We wish to proceed with the application.

GUMMOW J:   Why should we do that?  Why should we not see what the New South Wales Court of Appeal decides?

MR REUBEN:   There are two bases.  One is that if the judgment is allowed to stand, it creates a ‑ ‑ ‑

GUMMOW J:   Which judgment?  The earlier one?

MR REUBEN:   Yes, the earlier judgment.

GUMMOW J:   The orders of December 2000?

MR REUBEN:   Yes.  If the decision is left uncorrected, it has a serious effect on what might be described as imposing a fetter on the exercise by the primary judge of an express power given under Part 72 rule 13 of the Supreme Court Rules to decide any matter on the evidence which was in respect of those matters taken before the ‑ ‑ ‑

GUMMOW J:   Are you happy with the outcome under his Honour’s later judgment annexed to this affidavit of Mr Smith filed earlier this week?

MR REUBEN:   We are ‑ ‑ ‑

GUMMOW J:   You are not appealing against that, are you?

MR REUBEN:   We are not appealing against that but, your Honour, we are limited in the case that we might bring.

GUMMOW J:   Well, at the moment you are happy in the New South Wales Supreme Court.

CALLINAN J:   Look, I have to say, as a person who practised more out of this jurisdiction than in it, that Part 72 seems to me to be a recipe for disaster.  Why judges do not sit and hear cases and hear the cases in their entirety I do not know.  I know it is not your fault, Mr Reuben, but really, to divide up cases, to send them up and then to have a discretion whether to adopt somebody’s else decision or not strikes me as verging on the absurd.  I do not know why the power is invoked the way it is; I really do not.

GUMMOW J:   This litigation bears out what my colleague says.

MR REUBEN:   That is true.  But I think that in cases where there are technical issues such as there are in this case ‑ ‑ ‑

CALLINAN J:   But call an expert; make a decision.  The judge still retains a discretion whether he is going to adopt or reject the report anyway.  What is it, an appeal or – what is the nature of that proceeding?  It seems to me to be bizarre, frankly.  What, does he pick and choose:  some looks all right, some does not, then it goes on appeal?

MR REUBEN:   Your Honour, that is precisely why we say the application for special leave should be considered.

CALLINAN J:   We cannot do anything about Part 72 on appeal, unfortunately.

MR REUBEN:   That may be so, your Honour, but the way the situation on the law as it stands now as a result of this Court of Appeal decision is that, firstly, New South Wales has a much broader power in its statutory rules than any other State in that the power that is conferred by the statutory rules gives the judge the power to determine any other issue on the evidence, which is expressly stated in the statute.  That was the statutory power which the judge sought to exercise. 

What transpired was that the Court of Appeal has held that the exercise of that power was an abuse of process and it did so by applying what might be described as case management principles but, more importantly for the purposes of special leave ‑ ‑ ‑

GUMMOW J:   That could be another inflammatory phrase.

CALLINAN J:   Yes, do not provoke me any more, Mr Reuben.  “Case mismanagement” is often a more appropriate phrase.

MR REUBEN:   More importantly for special leave purposes, the consideration that was given by the Court of Appeal equated what was before the Court of Appeal to allowance of an issue as though the primary judge was hearing the issue on appeal.  In other words, instead of saying that the primary judge is entitled to receive evidence in relation to the matter so that the case can be determined on the proper footing on what the evidence is, they said that the case has been determined by the referees, that you cannot go beyond the findings of the referees on the case of an adoption of a referee’s report, findings on liability based on legal principles.

GUMMOW J:   Yes, but all this may be an unnecessary labour.  You have a pleading now, after all these vicissitudes, and I know there are cross‑questions wrapped up in that, but at the moment you seem to have a pleading with which you are happy.  You are not appealing.  You are not seeking leave to appeal, so you are happy in that sense.  It may be Mr Rudge’s application for leave to appeal is unsuccessful and then it goes to trial, hopefully by a judge.

MR REUBEN:   That is so, your Honour.

CALLINAN J:   On all issues.

MR REUBEN:   No.  That is the point, your Honour.  The issue is that ‑ ‑ ‑

GUMMOW J:   But the earlier decision of the Court of Appeal was an interlocutory order.  They can fix that up if they need be on this current application, can they not?

MR REUBEN:   No, they cannot, because what the Court of Appeal has effectively said is that, “We are going to limit the way ‑ ‑ ‑

GUMMOW J:   But it was an interlocutory order.

MR REUBEN:   It was an interlocutory order.

GUMMOW J:   It was an interlocutory appeal.  They made an interlocutory order.

MR REUBEN:   I accept that, your Honour, but what I am putting is that the case as now constituted is a different case.

GUMMOW J:   Why do you want to put your client to the extra expense of coming here and waiting another year when at the moment you seem to have the advantage you seek to get a trial?  I do not understand it.

MR REUBEN:   Because there are two different cases.  The case as it is currently constituted might be a case of what is regarded as a “failure to warn” case.  That is because of the Court of Appeal’s decision and because of the way his Honour Mr Justice Hunter interpreted the Court of Appeal’s decision and applied in the result of what Brodie had said.  In other words, he said that ‑ ‑ ‑

GUMMOW J:   Look, why should we not stand over this application to be relisted with such other applications as you may wish to make if you are unsuccessful in resisting the application to the Court of Appeal?

MR REUBEN:   I would be content with that, your Honour.

GUMMOW J:   What do you say about that, Mr Rudge?  No doubt, if you are unsuccessful in the Court of Appeal, you will be up here.

MR RUDGE:   Maybe, your Honour.  We submit that the case is here now.  The application was commenced.  It should be dismissed.  There is simply no special leave point involved in this case.

GUMMOW J:   I think we are both rather unhappy about the procedural history of this case.

MR RUDGE:   I could certainly understand that, your Honour.  But just very briefly on the substance of the case, your Honour, and I will be very brief on the substance of the application for leave to appeal, what occurred ‑ ‑ ‑

GUMMOW J:   I would be reluctant now, I think, to make any decision which shut us out from some ultimate control as to what the outcome of all this was if it went wrong in the Court of Appeal.

MR RUDGE:   I hear what your Honour says.

CALLINAN J:   And do not provoke us into having a close look at the circumstances in which Part 72 should be invoked.

MR RUDGE:   Your Honour, I think I have been at the Bar long enough to sit down at this point.

GUMMOW J:   The Court is of the view that the application should stand out of the list to be restored on 21 days notice by either side.  The costs for today will be the costs of the application as ultimately determined.

AT 3.22 PM THE MATTER WAS ADJOURNED