Fuller v Council of City of Wagga Wagga

[2000] HCATrans 307

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S247 of 1999

B e t w e e n -

DAWN (aka DEE) FULLER

Applicant

and

THE COUNCIL OF THE CITY OF WAGGA WAGGA

Respondent

Application for special leave to appeal

GLEESON CJ
GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 27 JUNE 2000, AT 2.03 PM

Copyright in the High Court of Australia

MR M.J. LEEMING:   May it please the Court, I appear for the applicant.  (instructed by Denniston & Day)

MR D.L. WILLIAMS:   If it please the Court, I appear for the respondent.  (instructed by Riley-Gray Spencer)

GLEESON CJ:   Yes, Mr Leeming.

MR LEEMING:   If the Court pleases, I seek not a grant of special leave but merely that this application be referred to the Full Court to be determined concurrently with two other applications that have been so treated.  Those other two applications are Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council.  Your Honour Justice Gaudron was part of the Bench that referred those applications to the Full Court.  Our inquiries with the Registry reveal that those applications are listed for two days on 30 and 31 August with an estimate of one and a half days. 

GLEESON CJ:   With, on the day before they commence, a case fixed for a day that could well go significantly over a day.

MR LEEMING:   Thank you, your Honour.  May I assume that the Court is familiar with the issues raised in ‑ ‑ ‑

GAUDRON J:   But why should we crowd the Bar table on that occasion?  Why should this matter not simply stand over pending the outcome of those proceedings?

MR LEEMING:   In those proceedings the Court has indicated in the applications raised for determination merely the question whether the immunity, the non‑feasance immunity of highway authorities, should be reconsidered, and it may be reconsidered by this Court.  If that were in truth the sole basis for the Court of Appeal’s decision in this case, with respect, there would be a great deal to be said for what has fallen from your Honour’s lips just then, but in fact there were two bases for the Court of Appeal allowing an appeal against the decision of the trial judge in this case.  A fair statement of the Court of Appeal’s reasoning is that the substance of the application was its application of the rule in Sisson’s Case, the artificial structures rule.

GAUDRON J:   But is that not really part of the same principle?

MR LEEMING:   Quite so.

GAUDRON J:   If the non‑feasance, misfeasance, goes, presumably there will be one consequence in this case and, if it does not go, then the artificial structures issue will not arise.

MR LEEMING:   With respect, we say there are a number of possibilities that may eventuate, and it is a little invidious to indicate at this stage precisely what will happen after the determination of the Ghantous and Brodie appeals, but may we say this:  first of all, we accept completely that in reformulating and reconsidering the rule in Buckle’s Case, it is of course necessary to determine the scope of the exception.  One cannot appreciate the ambit of a rule without appreciating the ambit of the exceptions to that rule, and neither of the other two cases raises this important exception, the artificial structure exception.  That is the first thing we say.

The second thing we say is that even if the rule in Buckle’s Case is preserved, there is good reason to reconsider the scope of the artificial structure exception.  It is an exception which has been criticised by academic authorities and is also very much at odds with what was said by Justice Dixon in Buckle’s Case.  Where his Honour dealt with this exception, his Honour said the basis of it was not who had installed or created the artificial structure but rather who owned or controlled the artificial structure.

What has happened in this case is that the Court of Appeal has focused upon the application in Sisson’s Case that, in order to fall within the artificial structure exception, it is absolutely essential that the highway authority have itself created or installed the artificial structure.  That holding was determinative of the appeal and, were the broader control or ownership principle adopted, in my submission, the facts are absolutely plain that the ‑ ‑ ‑

GLEESON CJ:   Correct me if I am wrong, Mr Leeming, but, as I understand it, the alternative possibility to the existing rule that is going to be urged in the cases of Brodie and Ghantous is the proposition that the general principles of the law of negligence apply to the conduct of local government authorities.

MR LEEMING:   Yes.

GLEESON CJ:   If the general principles of the law of negligence apply, that will presumably have some implications for artificial structures.

MR LEEMING:   It certainly will, and one possibility may be that if the applicants in those cases are successful, there will be no need to deal with an exception in terms because the rule will have gone but, ordinarily, one would have thought that in order to elucidate how those principles applied in practice, the Court would give some indication about the factors which would be relevant in determining the duty and content of the duty to be implied.  Those factors, one would expect, would include dealing with how legal liability attaches where there is an artificial structure on the highway.  We also say this, that this is a case of course where the artificial structure was not on the highway itself proper where the cars go up and down, but on the footpath.  One would expect that if the applicant was successful and this area of the law were reconsidered, another factor which would be of relevance would be whether or not the artificial structure is on the highway proper or on land adjacent to the highway.

GLEESON CJ:   The principles that are up for possible reconsideration in the cases of Brodie and Ghantous must affect hundreds, perhaps even thousands, of cases that are pending in the courts throughout Australia at the moment.

MR LEEMING:   Yes.

GLEESON CJ:   Presumably the logical consequence of what you are argument is that we should have them all there.

MR LEEMING:   Not at all and, if that were the case, I would be very reluctant of course to embrace such a proposition.  Our case is special because judgment was handed down by the Court of Appeal two weeks before Brodie and Ghantous special leave applications were heard.  So, unlike all those other possibly thousands of cases in the legal system which still have all rights of appeal and one would expect will ultimately receive judgments in accordance with the law, my client has the risk of being bound by a judgment which, to everyone’s regret, is found in a short period of time to have been based on ‑ ‑ ‑

GLEESON CJ:   No, your rights are preserved if we simply stand over this special leave application to be listed again after we give our decisions in Brodie and Ghantous.

MR LEEMING:   That is quite so and that is certainly the secondary position for which I contend.  There are two more things to say in respect of the primary position, though, that this be heard at the same time.  The first is as to convenience.  I appreciate what your Honour has said already about the case listed on the Tuesday before and the possibility that there may not be as much time, but one would expect that with the advantage of full written submissions and neither counsel of course reiterating materials that have already been said in the previous two cases, this application could be dealt with as if it were an appeal in a very short period of time – the space of an hour or so – and so there should not be any more inconvenience to the Court.

Secondly, if when the matters were fully developed the Court took a different view and did not embrace the matters that I have spoken of now, there is no disadvantage because it is only an application for special leave and leave could be refused on the usual concise summary basis.  Alternatively, if the principles were reformulated, it will be possible to deal with the appeal very concisely simply by reference to the principles that have been enunciated in the other cases.

GAUDRON J:   I am not too sure that that is correct, Mr Leeming, in this respect.  As I understand the respondent’s submissions, they say there is no evidence which would ground knowledge and, presumably, foreseeability.  That could well require the Court to look at the evidence in some detail.

MR LEEMING:   There are a number of things to say in relation to that.  First of all, this concerns an anticipated notice of contention which we have not seen as yet.  Secondly, we have dealt with these matters in the applicant’s reply.

GAUDRON J:   You talk about the trial judge’s findings.

MR LEEMING:   That is so, and those ‑ ‑ ‑

GAUDRON J:   But if there is no evidentiary foundation, there is no evidentiary foundation.

MR LEEMING:   Of course I agree with that, your Honour, but we say that there is the clearest evidentiary foundation.  The six relevant matters are set out at page 47 of the application book.  There was admission on the pleadings that the Council owns this pipe.  Then there are the findings that the street was cleaned regularly, that Council vehicles went past the hazard on a daily basis, the Council maintained the footpath on a fair wear and tear basis, and that indeed the Council installed the footpath in the early 1950s.  So we say, at the end of the day, there is certainly a clear factual basis for what the trial judge actually found, which was negligence in all the circumstances.  So, if the reformulation of the principle which is contended for in Ghantous and Brodie succeeds, then this will be a very simple case indeed:  the decision of the trial judge will be reinstated.

As I say, our primary submission is that it will be to the convenience of the Court and to the parties if this application is referred to and determined at the same time as the other two.  If the Court is not inclined to

do that, then the secondary position is that it be adjourned pending the outcome of the other two applications.  May it please the Court.

GLEESON CJ:   Thank you, Mr Leeming.  Yes, Mr Williams.

MR WILLIAMS:    The first point I would make is this, that if the general rule goes, then there will be no need to consider the exception.  The need for consideration of it would naturally fall with it.  The second matter is that my learned friend said that there was some special feature of this in that the matter concerned the footpath rather than the road proper.  All of the authorities regard the footpath as being part of the road and it does not seem to have been urged anywhere that I can see that it should not be so.

GLEESON CJ:   Mr Williams, we do not need to hear you on the proposal that we list this matter for hearing at the same time as Brodie and Ghantous.  What do you say to the submission that we should stand this matter over to be relisted following judgment in Brodie and Ghantous?  Presumably, if you were going to oppose that, it would be on the basis that this application is bound to fail in any event.  Is that a submission that you make?

MR WILLIAMS:   It is, but really for the grounds that I have set out in writing and I do not really need to develop them further.  If your Honours are not with me in those written reasons, then ‑ ‑ ‑

GAUDRON J:   Perhaps you could draw my attention to specifically – is it the evidentiary basis?

MR WILLIAMS:   No, I am sorry, it is the fact that this is such a well‑entrenched rule that it is really a matter for the legislature rather than the Parliament.  Could I just develop that one stage further because it may have some significance.  The various text writers who have criticised the rule have drawn attention to what has happened in other jurisdictions.  In no other jurisdiction has the rule been changed by judicial efforts.  It has all occurred by way of legislative efforts.

GLEESON CJ:   But that is one of the issues we will be considering in Brodie and Ghantous presumably.

MR WILLIAMS:   Yes, it is, though in this case we have the 1993 amendments to the local government legislation and the Roads Act in New South Wales, which I have referred to in my written submissions.  Section 65 contemplates that the immunities continue.  Section 65 of the Roads Act provides that:

While exercising the functions of a roads authority under this Division with respect to a road for which it is not the roads authority, the RTA has the immunities of a roads authority with respect to that road.

That section, coupled with section ‑ ‑ ‑

GAUDRON J:   Were they responsible for the footpath?

MR WILLIAMS:   Yes, the road is considered to be part of the ‑ ‑ ‑

GAUDRON J:   Is the RTA responsible for this footpath?  No, the Council is.

MR WILLIAMS:   That is quite so.  I am not suggesting that this is a defence.  What I am suggesting is that this is a judicial recognition of the continuance of the ‑ ‑ ‑

GAUDRON J:   Legislative.

MR WILLIAMS:   Yes, I am sorry, a legislative recognition of the continuance of the common law exception.  That is fortified by section 146(1)(d) which provides under the new legislation expressly that the vesting of the land in fee simple or the road in fee simple in the Council or in the road authority:

does not constitute the owner of the road as an occupier of the land –

They are the only additional matters that I would wish to say over and above what I have in my written submissions in relation to futility, your Honours.  If your Honours are not with me on that, I do not think I could really oppose the matter standing over until after the other applications are dealt with.

GLEESON CJ:   Thank you, Mr Williams.  Yes, Mr Leeming.

MR LEEMING:   My friend said that the authorities were absolutely clear as to footpaths. 

GLEESON CJ:   We do not need to hear you on that point.

MR LEEMING:   Secondly, as to futility, in my submission, there is nothing in Mr Williams’ submissions that say anything against the proposition that this application should be adjourned pending the outcome of the other proceedings.

GLEESON CJ:   The Court is of the view that the appropriate course to pursue in this matter is to stand it out of the list on the basis that it is to be relisted following the handing down of judgments in the cases of Brodie and Ghantous that have been referred to in the course of argument.

AT 2.19 PM THE MATTER WAS CONCLUDED