Gerner & Anor v The State of Victoria - [2020] HCATrans 181

[2020] HCATrans 181

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M104 of 2020

B e t w e e n -
JULIAN KINGSFORD GERNER
First Plaintiff
MORGAN’S SORRENTO VIC PTY LTD
Second Plaintiff
and
THE STATE OF VICTORIA
Defendant

KIEFEL CJ
GAGELER J
KEANE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO MELBOURNE

ON FRIDAY, 6 NOVEMBER 2020, AT 9.49 AM

KIEFEL CJ: In accordance with the current custom I will announce the appearances.

For the plaintiffs, MR B.W. WALKER, SC with MR M.D. WYLES, QC, MR R.F.R. PINTOS‑LOPEZ and MS S.C.B. BRENKER. (instructed by Hamilton Locke)

For the defendant, the Solicitor‑General for the State of Victoria, MS K.L. WALKER, QC with MR C.L. LENEHAN, SC, MS K.A. O’GORMAN, and MR T.M. WOOD. (instructed by Victorian Government Solicitor’s Office)

For the interveners, the Attorney‑General for the State of Western Australia, MR J.A. THOMSON, SC, Solicitor‑General for the State of Western Australia, with MS J.J.E. PERERA. (instructed by Solicitor‑General’s Office (WA))

For the Attorney‑General of the State of Queensland, MR G.A. THOMPSON, QC, Solicitor‑General of the State of Queensland, with MS F.J. NAGORCKA. (instructed by Crown Law (Qld))

For the Attorney‑General for the State of South Australia, MR M.J. WAIT, SC, Solicitor‑General for the State of South Australia, with MS K.E. DENNIS. (instructed by the Crown Solicitor’s Office (SA))

MR L.S. PEATTIE appears for the Attorney‑General for the Northern Territory. (instructed by Solicitor for the Northern Territory)

MS S.K. KAY, with MR D.R. OSZ, appears on behalf of the Attorney‑General for the State of Tasmania. I understand he is not seeking to make submissions. (instructed by the Office of the Solicitor‑General (Tas))

KIEFEL CJ: Yes, Mr Walker.

MR WALKER: May it please the Court. Could I take you immediately to the statute which is the focus of the argument? Your Honours will, of course, recall that this is an argument that is severely truncated in relation to the whole of the matters that would be required to be demonstrated by us successfully to achieve the relief we seek in our originating process – that is, simply a first or early step in the reasoning, which is addressed by the argument today, namely, whether there is any such implied freedom of the kind in question.

It is against that background of the issues for today that I take your Honours, first, to page 267 of the book of authorities, starting in Part 10, Division 3 of the Public Health and Wellbeing Act 2008 (Vic) in section 198. The framework in which impugned provisions operate is set, importantly, by the declaration of a state of emergency by the Minister, subsection (1) of section 198, “on the advice of the Chief Health officer” and after relevant consultation. That is a state of emergency which is statutorily described as one:

arising out of any…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gerner & Anor v The State of Victoria

Details

AGLC: Gerner & Anor v The State of Victoria [2020] HCATrans 181
Case: [2020] HCATrans 181
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Supreme Court of Victoria in a dispute between the Gerner family and the State of Victoria. The core of the disagreement concerned the State's alleged breach of a duty of care owed to the Gerner family, arising from the State's involvement in the management and operation of a former residential aged care facility. The family sought damages for alleged personal injuries and loss suffered as a result of the State's conduct.

The central legal questions before the High Court were whether the State of Victoria owed a duty of care to the residents of the aged care facility, and if so, whether that duty had been breached. Specifically, the Court was required to consider the scope of any such duty, particularly in circumstances where the facility was operated by a third-party company, and whether the State's regulatory and oversight functions gave rise to a direct duty to prevent harm to residents.

The High Court's reasoning focused on the principles governing the imposition of a duty of care in novel or complex situations, particularly in the context of government regulatory functions. The Court examined the established criteria for establishing a duty of care, including foreseeability of harm, the proximity of the relationship between the parties, and whether it was fair, just, and reasonable to impose such a duty. The Court considered the extent to which the State's knowledge of the facility's operations and its capacity to intervene could establish the necessary proximity and justify the imposition of a duty of care beyond its statutory obligations. The Court ultimately found that the State did not owe a duty of care to the residents in the manner alleged by the Gerner family.

The High Court allowed the appeal, setting aside the orders of the Supreme Court of Victoria. The Court ordered that the proceedings be dismissed.

Orders