De Bruyn v The State of South Australia

[1991] HCATrans 75

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A21 of 1990

B e t w e e n -

ADA DE BRUYN

Applicant

and

THE STATE OF SOUTH AUSTRALIA

Respondent

Application for special leave

to appeal

MASON CJ DAWSON J TOOHEY J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 15 MARCH 1991, AT 12.33 PM

Copyright in the High Court of Australia

de Bruyn 1 15/3/91

MR D.W. SMITH: If the Court pleases, I appear with my

learned friend, MR T.J.H. JACKSON, for the

applicant. (instructed by Wallmans)

MR J.J. DOYLE, QC, Solicitor-General for South Australia:

If the Court pleases, I appear with my learned friend, MR R.B. THOMPKINS, for the respondent.

(instructed by the Crown Solicitor for South

Australia)

MASON CJ: Yes, Mr Smith?

MR SMITH:  Your Honours, this application finds its way to

this Court via an interlocutory application to

strike out pleadings.

Your Honours, the circumstances which followed

that are set out at page 10 of the application book

where the learned Chief Justice sets out the

circumstances leading to this application.

If the Court pleases, the special leave point,

in our submission, is an important point of

principle which arises in this application in the

sense that it concerns the true legal basis upon

which a master is held liable for the tort of his the sense that he is made answerable for the
servant committed in the course of his employment.

servant's wrongs, so that the master will be liable

only if the servant is liable and any defence

available to the servant will also be available to

shield the master, or the servant's wrong imputed

to the master so that the master has his own

liability which rem?l-ins with him notwithstanding

any immunities which may extend to the servant?

Your Honours, this debate is referred to in

two cases in the list of authorities and in the

bundle of authorities before you,	Broom v Morgan,
and Parker v Commonwealth.

MASON CJ: But it is also dealt with in Darling Island v

Long, is it not?

MR SMITH: Yes, as I understand, Your Honour. I understand

it was dealt with rather peripherally and obiter in

that case.

MASON CJ:  As I recollect it, three Judges of a Court of

five held that it was the master's tort, not the

servant's tort.

MR SMITH: Yes. Your Honour, if that is so, then it

supports the ultimate argument that I intend to

make here.

de Bruyn	15/3/91
MASON CJ: It may be as between master and servant

ordinarily, but one might be compelled to take a

different view of it, if you are looking at it when

the Crown is the alleged principal.

MR SMITH: Yes. If I could come to that then, Your Honour.

The context in which this point arises is itself,
in our submission, of general importance. There is

an opportunity, in my submission, for this Court, in this respect at least, to determine the way in which the Crown Proceedings Acts in this country

relate to the plethora of legislation relating to

the activities of Crown servants and Crown

instrumentalities in which there are invariably, or

quite often, I should say, immunities.

Your Honours, this point not so much concerns

just how section 10 of the Crown Proceedings Act

here in South Australia is going to apply to the

statutory immunity clause, section 29(1), in the

Highways Act, but also how it will be interpreted

to apply to the numerous other South Australian

enactments which confer immunities on government

boards and government offices.

MASON CJ: Let us assume for the moment that it a point that

would warrant, in appropriate circumstances, the

grant of special leave to appeal. Why should this

Court entertain it at this stage before the action

has been heard and determined?

MR SMITH:  Your Honour, the point is only alive at this

stage. The issue of whether it can be raised or

not is really being determined by the Full Court

and that issue is clearly defined already, in my

respectful submission.

MASON CJ: But if the action goes forward to a hearing and

results in judgment, as it were, against the

submission that you are currently making, then you

would be in a position to take an appeal at that

stage.

MR SMITH:	Your Honour, would that be so, with respect? issue of whether the Crown can rely on section 29(1) at all has, in effect, been	The
determined, in my respectful submission.

MASON CJ: It has not been determined by us.

MR SMITH:  No, Your Honour, but -

MASON CJ: Clearly enough, if you were to take an appeal at

the end of the action, you would be foreclosed from

succeeding in the Full Court of the Supreme Court.

That Court would naturally follow the decision it

has given in this case. But there would be nothing

de Bruyn 3 15/3/91

to stop you from presenting an application for

special leave to appeal to this Court at that

stage.

MR SMITH:	Your Honour, if that be the case then I cannot argue against that.
DAWSON J:	And the point may never arise because the claim

is in negligence, I take it?

MR SMITH:	Yes, it is, Your Honour.
DAWSON J:	And it is still an open question as to whether negligence takes you outside section 29(1) of the
Highways Act, is it not?

MR SMITH: It is, yes, Your Honour.

DAWSON J:	So the point may never arise.
MR SMITH:	No, that is true, Your Honour.  Your Honours,

could I submit none the less that it is a matter

that is capable of being dealt with at this level?

MASON CJ: Yes, you can certainly make that submission.

MR SMITH: Could I come to - - -

MASON CJ:  We are merely pointing out to you the difficulty

that we see in terms of granting special leave at

this stage because it seems to us, prima facie at

any rate, that it would be more appropriate for the

Court to consider the question when the action has

been determined and when any facts that may be

relevant to the determination of the question have

been decided. For example, Mr Justice Legoe, in

his judgment, referred to some difficulties that

arise on his view of the law in determining the

question in advance of findings of fact.

MR SMITH: Yes, Your Honour. I suppose the submission I

could make about whether this is premature or not

would be that in a sense, if in fact what happens	is that the point does not arise, it would be in a
way a shame.

MASON CJ: Yes, we have lost an opportunity, you would say.

MR SMITH: Yes, and that may continue to happen whilst

people are - - -

MASON CJ:  You may regret that, Mr Smith, but I do not think

we would regret it.

MR SMITH: If Your Honour pleases. Well, Your Honour, could

I just then quickly deal with the argument about why the judgment of the Full Court ought to be the

de Bruyn 4 15/3/91

subject of this application? In this case,

Your Honours, the learned Chief Justice, with whom

Justice Perry agreed, avoided the debate - I say, with respect - on the question of vicarious

liability, by deciding the case as an exercise of

statutory construction, and the core of His Honour
the Chief Justice's decision is found at page 16 of
the application book, line 7, if the Court pleases.

His Honour concluded, in relation to section 29(1),

by saying:

Section 29(1) in my opinion goes beyond the conferral of immunity from suit and operates to render the conduct non-tortious.

Your Honours, it is the applicant's contention that

that was an erroneous construction of section 29(1)

in the sense that it went too far, and our

submission is that being made subject to liability,

or not being made subject to liability, does not
change the character of the act that might be the
subject of that argument, from being tortious to

non-tortious, and one would still argue that a duty

to behave carefully, for instance, must still

exist, and Your Honours, that is the argument, if

you like, that will be contended for in this

application.

His Honour the Chief Justice, went on to, in

effect, distinguish Broom v Morgan on the basis of

a different formula of words and it is our

submission, Your Honours, that the decision really

did not address the real basis of the decision in

Broom v Morgan which was that the master had a

distinct and independent liability and that is made
clear from the fact that Their Lordships in the

Court of Appeal in Broom v Morgan followed the

American line of authorities and, in particular,

the decision of Chief Justice Cardozo in Schubert v August Schubert Wagon Company, which is referred to

in Broom v Morgan, it is not separately in the book

of authorities before Your Honours.

So, Your Honours, my submission is that that

interpretation given to section 10 of the Crown

Proceedings Act goes a long way to substantially

eroding the benefits of the Crown Proceedings Act

in the sense that the Crown Proceedings Act here in

South Australia, and I would contend in other

jurisdictions, intended that the Crown be put to

some extent on the same footing as ordinary

citizens.

Your Honours, it would be my final contention

that if the master - in this case the Crown - is to

receive the immunities that Crown servants are

given in the legislation, then the ~egislature

de Bruyn 5 15/3/91

could legislate to make it so. Your Honours, in

the book of authorities provided to you there is a

Northern Territory Fire Service Act which I would

contend does just that. The Northern Territory

Fire Service Act is found at page 15 of the

booklet, and I draw your attention to section 99 in

the middle of that page, Your Honours.

One final matter: there is, when one reads

the judgments of the Chief Justice as against the

judgment of Justice Legoe, a difference of opinion not so much on the result of the case, but on that

essential question of whether the conduct is

changed in character from being what might be said

to be tortious in one place and non-tortious in the

other. I refer Your Honours to what Justice Legoe

said which is set out at pages 36 and 37 of the

application book, and as compared with what

His Honour the Chief Justice said at page 16

point 2.

So, Your Honours, I just commend to you the

specifics set out in the affidavit in the

application booklet at pages 45 to 47 as to why

this matter should receive special leave. If

Your Honour pleases.

MASON CJ:  Thank you, Mr Smith. The Court need not trouble

you, Mr Solicitor.

The question which the applicant seeks to have

determined by this Court is one which might well,

in appropriate circumstances, warrant the grant of

special leave. But the point has been decided by

the Supreme Court at an interlocutory stage of the

proceedings and we are not persuaded that it would
be appropriate to grant special leave to determine
the question in advance of the trial. Indeed,
there may be some disadvantage in our attempting to
deal with it in the abstract in the absence of

findings of fact. The application for special

leave to appeal is therefore refused.

MR DOYLE:  We make application for costs if the Court

pleases.

MASON CJ:	You cannot resist that application, Mr Smith?
MR SMITH:	No, Your Honour.
MASON CJ:	The application is refused with costs. The Court

will now adjourn sine die.

AT 12.48 PM THE MATTER WAS ADJOURNED SINE DIE

de Bruyn 6 15/3/91