Frost & Ors v Warner

[2000] HCATrans 329

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S254 of 1999

B e t w e e n -

SUSAN MARY FROST

First Applicant

MELISSA FROST by her next friend SUSAN MARY FROST

Second Applicant

DONALD MARTIN

Third Applicant

and

CAROLYN WARNER

Respondent

Application for special leave to appeal

GLEESON CJ
GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 4 AUGUST 2000, AT 9.34 AM

Copyright in the High Court of Australia

MR J.D. HISLOP, QC:   May it please the Court, I appear with my learned friend, MR G.R. KENNETT for the applicants.  (instructed by McDonald Johnson)

MR S.J. MOTBEY:   May it please the Court, I appear for the respondent. (instructed by Pappas J)

GLEESON CJ:   Yes, Mr Hislop.

MR HISLOP:   Thank you, your Honours.  Your Honours, the initial question arises out of the fact that the respondent was the person who was the holder of the certificate of registration of the vessel which foundered with the loss of life that brings us here.  As a result of that fact, in our submission, she was the person who controlled the vessel.  This follows from the form of the regulations.

GAUDRON J:   Was it exactly right that she controlled the vessel, or did she simply control who could drive – do you drive a vessel?

MR HISLOP:   We will accept that you drive the vessel, your Honour.  But the Regulation 11(2) is the regulation which permits a person to obtain a certificate of registration, and that person is the person who controls the registrable vessel.  Under Regulation 2(3) it is provided that ‑ ‑ ‑

GLEESON CJ:   Where do we see that, Mr Hislop.

MR HISLOP:   We sent a bundle of documents to the Court, your Honours.  It is the first of those, the Water Traffic Regulations.

GLEESON CJ:   Thank you.

MR HISLOP:   Your Honours will see on the first page of that, it has stamped on it “Superseded”.  These were the regulations in force at the time.  There have been amendments since, but they do not materially impact upon the submissions that we would seek to make.

Regulation 2(3) is set out on the fourth page of the document which the Court has – it is number 4 of the regulations.  Your Honours will see that it says there:

A reference in these Regulations to a person who has the control of a vessel is a reference to a person who has the right to decide the possession, disposition and use of the vessel.

And we particularly emphasise the word “use”.  So, then the respondent, being the person holding a certificate of registration, was the person who had the control of the vessel and the right to decide the possession, disposition and use of that vessel.

Now, Regulation 11(11), and that is at page 15, provides:

Any person who navigates a registered vessel, or who, having custody of the same, permits or suffers such vessel to be navigated, without the authority or consent of the holder of the certificate of registration for the vessel shall be guilty of an offence against this regulation.

I should say further, under Regulation 11(7) it is provided that:

If the holder of the certificate of registration for a vessel ceases to control such vessel he shall forthwith –

take steps to inform the Board:

of the person to whom control of the vessel has been transferred and the date of such transfer;

and so on.

GLEESON CJ:   Mr Hislop, is that anything more than a system for dealing with the fact that arrangements are often made in relation to vessels under which the actual owner of the vessel is not necessarily the person who, at any given time, has the right to decide possession, disposition and use of the vessel?  There might be a charter or a time charter, a voyage charter.  There are a whole variety of arrangements that are made in relation to vessels.  Is this aspect of the regulatory scheme anything more than a means of saying the person who has the responsibility to take out a certificate is not necessarily the owner of the vessel?  It may be the person who, as a result of arrangements, directly or indirectly with the owner, has the right to decide the possession, disposition and use of the vessel.

MR HISLOP:   Yes, certainly it does not have to be the owner, your Honour.  But by taking the registration of the vessel they, therefore, under the regulations, have the power of control that one has indicated as to the use of the vessel.

GLEESON CJ:   That is what I want to understand.  Do they have the powers of control because of the regulation, or is it the case that, on the contrary, the regulation just looks for the person who has the power of control?

MR HISLOP:   We submit that they have the power of control because of the regulation.

GAUDRON J:   Would it make any difference?

MR HISLOP:   It probably would not, your Honour.

GAUDRON J:   Because in this case you do not assert, do you, vicarious liability, you assert direct liability?

MR HISLOP:    We assert both, your Honour, in the alternative or together.

GLEESON CJ:   But who was the actual owner of this vessel, probably some finance company?

MR HISLOP:   It is a little unclear, but it seems more likely than not it was probably the husband of the respondent.

GLEESON CJ:   The husband was the owner?

MR HISLOP:    Yes.

GLEESON CJ:   Then, how did the respondent become the person who had the right to decide the possession, disposition and use of the vessel?

MR HISLOP:   She became that because she held herself out as being the person who had the control of the vessel and thus obtained registration of the vessel in her name with the concurrence of her husband.

GLEESON CJ:   That is a small problem I have.  It may not be determinative of the outcome, but I am just not sure at which end you start here.  Do you take out a certificate of registration and thereby become the person who has the right to decide the possession, disposition and use of the vessel, or is your obligation to take out a certificate of registration the consequence of the fact that you happen to be the person who has the right to decide the possession, disposition and use of the vessel?

MR HISLOP:   Unless the vessel is registered, then there are various offences which result, one of which is it is an offence to navigate it on enclosed waters if it is registrable, but unregistered;  and there is also the offence of navigating it without the authority or consent of the holder.  The way in which we would seek to put it is that in the light of those provisions, by the respondent denying or withdrawing her consent, it would have made it unlawful for Mr Warner to navigate the vessel on this particular day.  So that she has, in that way, once she is registered as the owner, she has the power to control the use of it because the use, without her consent, is otherwise illegal.

GLEESON CJ:   Now where does that come from?

MR HISLOP:   That comes from 11(11).

GLEESON CJ:   Thank you.

MR HISLOP:   Which creates an offence to navigate the vessel:

without the authority or consent of the holder of the certificate of registration –

GLEESON CJ:   Thank you.

MR HISLOP:   So that what we see then follows is that Mr Warner, in navigating the vessel at the time that it foundered had to be sailing it with the authority or consent of the respondent, whether that authority or consent be implicit or explicit.

GAUDRON J:   And she was present at all times?

MR HISLOP:    She was present at all times on the vessel on this occasion.  From that basis we then call in aid such cases as Soblusky v Egan to take the matter into vicarious liability.  We also use the same factual context ‑ ‑ ‑

GLEESON CJ:   You do realise, do you not, that Soblusky v Egan is under review at the moment; that there is a reserved decision of this Court dealing with the authority of Soblusky v Egan?

MR HISLOP:   That is Scott v Davis, is it, your Honour?

GLEESON CJ:   Yes.

MR HISLOP:   Yes, I was aware of that, your Honour, and I was not quite sure what was the appropriate approach in the light of that.  The judgment, when delivered, may or may not impact upon the arguments we are making here.

GLEESON CJ:   It is a case about vicarious liability.  There was no finding of direct responsibility on the part of the owner of the aeroplane?

MR HISLOP:   Yes.  But part of the argument we wish to make here is that, as well as personal liability, there is also vicarious liability, and it may impact on that.

GLEESON CJ:   Yes, I guess I sat on Scott v Davis.  It may impact on the issue of vicarious liability, but it has nothing to do with the issue of direct liability.

MR HISLOP:   Yes.  Your Honour, if I might make a short submission as to vicarious liability and then deal with the direct liability question.  If I could take the Court to page 61 of the appeal papers where at paragraph 35 the question of vicarious liability and the impact of Soblusky v Egan is dealt with.  The judgment says, at paragraph 35:

It was not claimed that Mrs Warner was the owner of the vessel.  It was not suggested that she had any other proprietary right or title to it.  Accordingly, she could not be liable as agent –

I presume that word “agent” may be incorrect:

or otherwise vicariously by virtue of any such right, title or interest.  Thus cases such as Soblusky v Egan…..which are founded on the rights flowing from ownership, and thus the control resulting from ownership, have no application to the present case.

In our submission, Soblusky v Egan is authority for a proposition which goes beyond the ownership ‑ ‑ ‑

GLEESON CJ:   Soblusky v Egan – the same result would have applied if the person held responsible was a bailee?

MR HISLOP:   Yes, and we would submit that the principle in that case extends beyond “owner”.  What is important in Soblusky v Egan is the power to exercise – or to have the power to control and direct the use.

GLEESON CJ:   Yes, so in an Irish case the owner of a teapot was held vicariously responsible when somebody poured tea over somebody else and scalded them.

MR HISLOP:   The position here is that in Soblusky v Egan the ownership of the car gave rise to the right to control.  In this case there is a right to control, we say, as a result of the regulation position.  It is that right of control which, we submit, founds vicarious liability and that the Court of Appeal was in error in limiting that case to a situation of rights flowing from ownership.

GLEESON CJ:   Soblusky v Egan was about a very direct form of control.  It was about the form of control that an owner or bailee of a motor vehicle, sitting in the back seat, has over the driver sitting in the front seat – not about the form of control that may be exercised at long range.  But your case, as I understand it, on vicarious liability here, at least, involves the proposition that she was present on the vessel at the time.

MR HISLOP:   It does.  And in Soblusky v Egan, of course, the actual owner, though in the vehicle, was sound asleep at the time.  In this case, the lady was on board the vessel at all relevant times.  So, we would submit that, having ‑ ‑ ‑

GAUDRON J:   There was a somewhat curious finding that there was no evidence that she knew of the numbers on board, was there not?

MR HISLOP:   That is so, your Honour, and I want to shortly come to that in relation to the question of personal liability.  But, essentially, the proposition we put in relation to vicarious liability is that which I have just outlined.  And as to personal liability, the submission which we make is that, by reason of the control which she had it created a necessary degree of proximity or relationship such as to give rise to a duty, and it extended to taking reasonable care to ensure the vehicle was operated in a safe manner.

Now, we submit that the respondent’s duty of care included a duty to prevent the vessel from sailing while it was seriously overloaded in circumstances where the respondent was, herself, present and could see the number of persons on board.  The vessel, as his Honour the trial judge found, was grossly overloaded.  It should have had 20 people.  It had 49 on it, and that caused it to founder.  It would have been apparent to a reasonable person of the experience of the respondent that it was dangerous for the vessel to sail and in failing to prevent it from sailing or to take any steps to raise the issue of overloading with Mr Warner, the respondent breached a duty of care.  The findings of the trial judge at page 18 at about line 30, we submit, are sound and should not have been disturbed.

GLEESON CJ:   Did I understand you to say that the husband was the owner of the vessel?

MR HISLOP:   Yes, your Honour.

GLEESON CJ:   Did the evidence explain how it came about that the wife, as against the owner of the vessel, had the capacity to decide whether the owner of the vessel was allowed to navigate it?  Or to put it more bluntly, did the evidence disclose how it came about that as between the husband, who was the owner, and the wife, it was the wife who became the registered controller?

MR HISLOP:   I do not believe that clearly emerged, your Honour.  My friend Mr Motbey says that that is not the position and no doubt he can inform the Court otherwise.  But the situation remains, nevertheless, that he obviously acquiesced in her becoming the registered person in respect of this vessel, with the consequences that followed.  I was taking the Court to 18 point 30.  His Honour the trial judge said:

I am further of the opinion that as registered controller in the circumstances of this accident she was, herself, negligent.  I am satisfied as registered controller she owed a duty of care to the passengers on this vessel, on this day.

He knew about boats.  She had experience, over a number of years.  They invited a number of the people on board, not by any means all the people.  She knew, or should have known how many people were on board.  She should have known that the vessel was grossly and dangerously overloaded.  She should have taken steps as registered controller to ensure the vessel did not leave the dock with that number of persons on board.

We submit that is a proper finding, and one that should not have been interfered with.  So that, in our submission, whether the matter be viewed as a case of vicarious liability or as personal liability, the ‑ ‑ ‑

GLEESON CJ:   That sounds like personal liability.

MR HISLOP:    The latter is, certainly, your Honour, yes.  And we put it in that way as well as the initial vicarious liability.  We say that on either, or both, bases the trial judge was correct and the Court of Appeal in error in overturning his judgment.  In our submission the case raises important questions as to duties and liabilities that arise in relation to the holding of certificates of licence or registration under statute.  There are also important questions as to whether Soblusky v Egan and the principles therein should be confined to ownership of a motor vehicle, or whether it has wider ramifications for which we contend.  The very nature of the case that here, the applicants, on the unchallenged findings of his Honour, were the victims of a negligent act which caused them significant damage, and they have been unable to obtain the sums awarded to them for Mr Warner, and they seek to reinstate his Honour’s findings against the respondent in order to recover for those losses.  If it please the Court, they are the submissions.

GLEESON CJ:   Yes, thank you, Mr Hislop.  Yes, Mr Motbey.

MR MOTBEY:   Thank you, your Honours.  Your Honours, the core issue in this case at the trial was whether or not the respondent had any right of control over this vessel.  The way the case was primarily fought out and at the trial level was the plaintiffs were asserting that the respondent was, in fact, the owner of the vessel.  The status of “owner” we were told was to the same extent, the same content, as the status “registered controller”.  The nub of the case, so far as her liability was concerned, was she the owner?  Did she have a legal power of control?  If she did, then they went the next step to say that legal power of control would carry with it duties of care.

The plaintiffs lost the case on ownership.  The trial judge found that she did not own the vessel and on appeal the plaintiffs conceded openly that it was correct, she did not own the vessel.  The vessel was always under the legal control of her husband.

GLEESON CJ:   Who was the owner of it?

MR MOTBEY:   Her husband.

GLEESON CJ:   But how did it come about that if the husband was the owner, she became the registered controller, in circumstances where it was intended that her husband would have the practical management of it?

MR MOTBEY:   The evidence, from the husband and from the respondent, was that he saw it as convenient to document the owner as his wife rather than himself.

GLEESON CJ:   Is the outcome of the present case so far the manifestation of that convenience?

MR MOTBEY:   I would not say the outcome of the case, your Honour.

GLEESON CJ:   Why was it convenient?

MR MOTBEY:   It may be that he, in his own mind, considered it advantageous to him in some financial sense that ‑ ‑ ‑

GLEESON CJ:   Such as avoiding liability?

MR MOTBEY:    Not in relation to tortious usage of the vessel, not avoiding liability in that sense.

GLEESON CJ:   Avoiding liability in what sense?

MR MOTBEY:   Well, perhaps he had in mind – and this was not demonstrated – but it would not be beyond the realms of possibility that it would not be seen as his asset.

GLEESON CJ:   All right.  So, if that was his objective, she was complicit in it?

MR MOTBEY:   Her evidence was that, and I am not entirely clear the way she put it, she was not clear, in her own mind, that this had been originally put in her name.  The document itself was never found and the inference was that it was all the husband’s doing to put the boat in her name.  But it was very clear, and no doubt about it, and abandoned any suggestion to the contrary on appeal, that it was not her vessel, that she had no legal power of control over it.

GAUDRON J:   Well, they did not abandon that she had no legal power of control; no power of control as owner.

MR MOTBEY:    No power of control as owner.  Forgive me, your Honour.

GAUDRON J:   But power of control as registered controller.

MR MOTBEY:   Now that is what this case is really all coming down to right now, if I may say so.  If you accept that dehors the regulation she had no legal power of control, which is what the findings of fact are, then the question arises:  what effect does this regulation have on that matter of legal power of control?  What was put at the conclusion of the trial, not in the evidence – nothing was ever put to the respondent in the evidence ‑ what was put by way of submission was, even if we are wrong about “owner”, even if she did not have legal power of control by virtue of ownership, she had legal power of control by virtue of the operation of these regulations.  That was a legal controversy that the trial judge adjusted in favour of the plaintiffs, and the Court of Appeal reversed as a matter of law.

GLEESON CJ:   Suppose the owner of the vessel had been not the husband but, as must often be the case, a finance company?

MR MOTBEY:   The finance company would not become the registered controller in that situation.

GLEESON CJ:   Exactly.  Because in that situation, usually, pursuant to the arrangement between the finance company and the borrower, it would be the borrower who had the right to decide the possession, disposition and use of the vehicle.

MR MOTBEY:    That is so, your Honour.  But the simple point is this:  accepting that dehors the regulation, this lady had no legal power of control, it becomes a very simple matter of construing the regulation to work out whether or not it imposes or grants to her a legal power of control.  The Court of Appeal held unanimously that it does not and, in my respectful submission, it is very clear that it does not, and that really is an end of any meaningful controversy by way of further appeal.  If you look ‑ ‑ ‑

GAUDRON J:   But if you look at Regulation 11(11), she must at least have had the power to withdraw her husband’s authority to navigate the vessel?

MR MOTBEY:   Well, accepting that she did, for the sake of argument‑ ‑ ‑

GAUDRON J:   Yes, if you accept that she did, for the sake of argument.

MR MOTBEY:   It does not follow ‑ ‑ ‑

GAUDRON J:   Also, you bring yourself almost into a classic duty of care situation, do you not, with the power on one side and vulnerability on the other?

MR MOTBEY:   If you are in a situation where you know that it is dangerous, that there is peril at hand and you know that you have the power to, as it were, render another person’s act criminal, which is all that subregulation (11) is focussed upon ‑ ‑ ‑

GAUDRON J:   It is a bit more than rendering it criminal.  If you render an action criminal, you actually withdraw authority to do it.

MR MOTBEY:   Yes.  Of course there was absolutely no evidence that the lady knew of the existence of Regulation 11.  That was never put to her.  And there was a clear finding in the Court of Appeal that she did not know about it.  As I say, Regulation 11 did not feature in the trial itself, it came at the heel of the trial in submissions because they lost on the question of ownership, and so they were seeking to find control somewhere else.  But the importance about this subregulation (11) is that it would only operate as a feature of negligence if the person with the power to withdraw consent appreciated that the situation was dangerous.  In other words, in a situation where there was ‑ ‑ ‑

GAUDRON J:   Or should have appreciated.

MR MOTBEY:   Or should have appreciated.

GAUDRON J:   There is a difference. 

MR MOTBEY:   Appreciated or should have appreciated.  The Court of Appeal held conclusively – and this, I think, is at page 64 at point 12:

In the light of Mr Warner’s de facto control, the fact that Mrs Warner may have invited some people…..becomes irrelevant.  The duty to decide how many people should be on board was Mr Warner’s ‑ ‑ ‑

GAUDRON J:   Well, that begs the question, does it not?  The duty to decide how many people should be on board was Mr Warner’s.  That really does beg the question ‑ ‑ ‑

MR MOTBEY:   But their Honours had already found that she had not authorised him, in point of fact, to do anything at all.  She was completely remote.

GLEESON CJ:   Suppose a disagreement between them had arisen.  Suppose that she had said to Mr Warner “Look, I think there are too many people on board this vessel.”  And he said, “No, it will be all right.  You are wrong about that.”  Now, if push came to shove, as between the two of them who had the ultimate capacity to decide whether the vessel would go on the voyage or not?

MR MOTBEY:   That, I do accept, is a difficult question of law because one wonders whether or not this legislation is intended to grant to a registered controller power over the actual legal owner.  Mr Warner was the actual legal owner.  He was the person who truly did have the power over this vessel, and one wonders whether ‑ ‑ ‑

GAUDRON J:   But he did not have power to drive it on enclosed waters – he did not have the right to drive it on enclosed waters, except with the authority of the registered controller.  That much is clear from the regulations, is it not?

MR MOTBEY:   That may be so, with respect, your Honour.

GAUDRON J:   It is a matter of some significance, is it not?

MR MOTBEY:   I cannot say with any clarity or conclusiveness that subregulation (11) does operate in that way as against the true legal owner.  What this regulation contemplates is that the true legal owner, the person who truly has the right to decide the possession, disposition and use of the vessel, will be the registered controller.  That is not what happened in this case.  A person who did not have the right to decide possession, disposition and use of the vessel became the registered controller.  And what you would have in this hypothetical ‑ ‑ ‑

GAUDRON J:   Must it not be taken that, in allowing the vessel to be registered in his wife’s name, the husband thereby agreed to her having whatever rights came from that under the regulations?

MR MOTBEY:   That might be so, if they had actually turned their mind to these matters.  But there was absolutely no evidence that they had.  This case was not conducted around the powers or non‑powers inherent in Regulation 11.  It was never mentioned.  This case was conducted around ownership, and the plaintiffs lost that point.  But the point I ‑ ‑ ‑

GLEESON CJ:   Actions of negligence often come about mainly because people have not turned their minds to various matters.

MR MOTBEY:   But, your Honour, fundamental to this, if I may say so, with respect, is the question whether or not there was anything about the situation that might have alerted the respondent to take some action.

GAUDRON J:   I must say that I found the statement that:

there was no evidence that Mrs Warner knew, or ought to have known, that the vessel was “grossly and dangerously overloaded” -

the most curious thing in this judgment.  She was on board.  She had invited some people on board.  There is no evidence that she was visually impaired, or that she was innumerate.  And she knew about boats, according to the trial judge.  His Honour said “She should have known that the vessel was “grossly ‑ ‑ ‑

MR MOTBEY:   I think, according to the trial judge, he knew about boats.

GAUDRON J:   Yes, well that may be right.

GLEESON CJ:   Did this vessel have on it one of those signs saying “Maximum number of people”?

MR MOTBEY:   No, there was no warning.  In fact, I wish to be able to say something about this point, about why it is correct that there was no evidence that she ought to have known the situation was dangerous.  The key issue in this case was the issue of causation.  The reason this vessel foundered was not the number of people on board.  The reason this vessel foundered was the distribution of people.  There were too many people on the flybridge.  There were 10 people on the flybridge, so that as she heeled over, that weight moved to starboard and could not right itself.  This was absolutely no warning sign on this vessel to indicate that it was unsafe to have so many people on the flybridge.  In fact, it was laid out to accommodate eight seated and two standing. 

Now, after the accident the Naval architects analysed all of this and did weight analyses, and so forth.  They found it was only safe to have two people on the flying bridge.  So that what his Honour Justice Rolfe had found, in saying that there was no evidence that she ought to have known that the vessel was “grossly and dangerously overloaded”, was quite correct.

In fact, there was a number of features about the loading condition of this vessel that was deceptive.  I have mentioned the flying bridge.  There was no warning about that.  There were eight registered licensed navigators on board, one of them was a Naval officer.  When she was fully laden they looked at her in the water and it had not gone down very much in the water.  The exhausts were still clear, which is one of the tests for overloading, and it passed it easily.  What was wrong, unfortunately, and it is a terrible tragedy, is the geometry of the hull was such that with what they call the metacentric height, the centre of gravity, is that as laden, even with the 10 on board, if it heeled over, say, 10 ‑ ‑ ‑

GAUDRON J:   There were 49 on board, you see, and the trial judge’s finding was of gross overloading.

MR MOTBEY:   Yes.

GAUDRON J:   There were 10 people on the flybridge.  There were 39 below.  And, of course, it was the people below who were lost in this tragedy.

MR MOTBEY:   Yes.  But the difficulty, the cause of the problem was not the number of people below, it was the number of people on the flybridge.  You could have 10 on the flybridge and none below, and it would be almost just as unstable.

GAUDRON J:   Yes.  It might have been just as unstable, but it would not have been as dangerous.  If you had no people below – these people below lost their lives because they were below.  One can easily appreciate, regardless of the problems with the flybridge, the enormous hazards of 39 people getting out from below if the boat should list and go under.  One does not have to be a master mariner to work that out, Mr Motbey.

MR MOTBEY:   Several people, several of them licensed navigators, even the Naval architects, were of the view ‑ ‑ ‑

GAUDRON J:   But the trial judge found that the accident occurred because of gross overloading.

MR MOTBEY:   That is the trial judge’s finding, and I accept that, because of the way the trial judge decided the case on the law, incorrect ‑ ‑ ‑

GAUDRON J:   And his Honour did not decide why the vessel suddenly veered to port.

MR MOTBEY:   No, although that was a huge issue at the trial.  But all I wish to say on this score is that this finding by the Court of Appeal that there was no evidence, is actually a correct finding and doubtless my friend, if you can point to some evidence to show to the contrary, will do so.  But there was not ‑ ‑ ‑

GAUDRON J:   Is not the evidence to the contrary, the fact that she was on board?

MR MOTBEY:    She was on board.

GAUDRON J:   If she did not know, she was in a position to know how many people were on board.

MR MOTBEY:    She thought there were 43 on board, which is a lot of people.

GAUDRON J:   Yes, in fact, how many were there?

MR MOTBEY:    There were 49.  She had her own children on this boat.  It is fanciful, with respect, to suggest that she appreciated that this was dangerous.

GAUDRON J:   It is not a question of whether she appreciated it.  It is whether she should have appreciated it.

MR MOTBEY:   I wanted to develop the point about the meaning of these regulations because it is, as his Honour the Chief Justice suggested, not the case where you can, as it were, elevate yourself into authority merely by becoming the registered controller.  You have to – and this is what the Court of Appeal found – that all that, in fact, occurred was that she made a representation, or held herself out to the licensing authority as the person with the right to decide the possession, disposition and use.  It does not follow from the fact that she so held herself out, that she in truth had that right and, in fact, it was found that she did not have that right.  This was just a piece of evidence.  It is fallacious and an incorrect construction of this legislation to interpret it, as it were, elevating people into control when they do not, in fact, have it.  There is nothing in these regulations which so provides.

GLEESON CJ:   Thank you, Mr Motbey.  In this matter there will be a grant of special leave to appeal.

AT 10.12 AM THE MATTER WAS CONCLUDED