Gove (Blackman) & Ors v Owners of the Old Soap Factory & Ors

[2010] HCATrans 147

[2010] HCATrans 147

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P6 of 2010

B e t w e e n -

SHARON LEE GOVE (BLACKMAN)

First Applicant

BARNABY PIERRE COLIN WOOD

Second Applicant

PAUL CHARLES BLACKMAN

Third Applicant

KYLE THEODORE PETERS

Fourth Applicant

MICHAEL ANTONY KUBA

Fifth Applicant

SHELLEY MERRILYN GOLLAN

Sixth Applicant

MARYANNE FIORE

Seventh Applicant

MIA LEE FARINOSI

Eighth Applicant

TINA ELIZABETH D’CASTRO (ACKERMAN)

Ninth Applicant

JULIETTE CHLOE VIRGINIE WOOD

Tenth Applicant

DEAN DAVID HOLM GRAHAM

Eleventh Applicant

IAN ROBERT MICHEL REGNARD

Twelfth Applicant

DANIELLE DORISSE ELIZABETH BECKWITH

Thirteenth Applicant

NIGEL KENNETH GILES

Fourteenth Applicant

NEIL ALEXANDER GRANT

Fifteenth Applicant

MARC DREXEL

Sixteenth Applicant

ROBYN LESLEY DREXEL

Seventeenth Applicant

and

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)

First Respondent

DREXEL LONDON (A FIRM)

Second Respondent

HALPERN GLICK PTY LTD (ACN 008 729 204)

Third Respondent

CITY OF FREMANTLE

Fourth Respondent

RICHARD ASH BLACK

Fifth Respondent

ASH INVESTMENTS PTY LTD (ACN 007 949 395)

Sixth Respondent

Office of the Registry
  Perth  No P5 of 2010

B e t w e e n -

SHARON LEE GOVE (BLACKMAN)

First Applicant

BARNABY PIERRE COLIN WOOD

Second Applicant

PAUL CHARLES BLACKMAN

Third Applicant

KYLE THEODORE PETERS

Fourth Applicant

MICHAEL ANTONY KUBA

Fifth Applicant

SHELLEY MERRILYN GOLLAN

Sixth Applicant

MARYANNE FIORE

Seventh Applicant

MIA LEE FARINOSI

Eighth Applicant

TINA ELIZABETH D’CASTRO (ACKERMAN)

Ninth Applicant

JULIETTE CHLOE VIRGINIE WOOD

Tenth Applicant

DEAN DAVID HOLM GRAHAM

Eleventh Applicant

IAN ROBERT MICHEL REGNARD

Twelfth Applicant

DANIELLE DORISSE ELIZABETH BECKWITH

Thirteenth Applicant

NIGEL KENNETH GILES

Fourteenth Applicant

NEIL ALEXANDER GRANT

Fifteenth Applicant

ROBYN LESLEY DREXEL

Sixteenth Applicant

MARC DREXEL

Seventeenth Applicant

and

CITY OF FREMANTLE

First Respondent

DREXEL LONDON (A FIRM)

Second Respondent

Office of the Registry
  Perth  No P49 of 2009

B e t w e e n -

DREXEL LONDON (A FIRM)

Applicant

and

SHARON LEE GOVE (BLACKMAN)

First Respondent

BARNABY PIERRE COLIN WOOD

Second Respondent

PAUL CHARLES BLACKMAN

Third Respondent

KYLE THEODORE PETERS

Fourth Respondent

MICHAEL ANTONY KUBA

Fifth Respondent

SHELLEY MERRILYN GOLLAN

Sixth Respondent

MARYANNE FIORE

Seventh Respondent

MIA LEE FARINOSI

Eighth Respondent

TINA ELIZABETH D’CASTRO (ACKERMAN)

Ninth Respondent

JULIETTE CHLOE VIRGINIE WOOD

Tenth Respondent

DEAN DAVID HOLM GRAHAM

Eleventh Respondent

IAN ROBERT MICHEL REGNARD

Twelfth Respondent

DANIELLE DORISSE ELIZABETH BECKWITH

Thirteenth Respondent

NIGEL KENNETH GILES

Fourteenth Respondent

NEIL ALEXANDER GRANT

Fifteenth Respondent

ROBYN LESLEY DREXEL

Sixteenth Respondent

MARC DREXEL

Seventeenth Respondent

CITY OF FREMANTLE

Eighteenth Respondent

Office of the Registry
  Perth  No P48 of 2009

B e t w e e n -

DREXEL LONDON (A FIRM)

Applicant

and

SHARON LEE GOVE (BLACKMAN)

First Respondent

BARNABY PIERRE COLIN WOOD

Second Respondent

PAUL CHARLES BLACKMAN

Third Respondent

KYLE THEODORE PETERS

Fourth Respondent

MICHAEL ANTONY KUBA

Fifth Respondent

SHELLEY MERRILYN GOLLAN

Sixth Respondent

MARYANNE FIORE

Seventh Respondent

MIA LEE FARINOSI

Eighth Respondent

TINA ELIZABETH D’CASTRO (ACKERMAN)

Ninth Respondent

JULIETTE CHLOE VIRGINIE WOOD

Tenth Respondent

IAN ROBERT MICHEL REGNARD

Twelfth Respondent

DANIELLE DORISSE ELIZABETH BECKWITH

Thirteenth Respondent

NIGEL KENNETH GILES

Fourteenth Respondent

NEIL ALEXANDER GRANT

Fifteenth Respondent

ROBYN LESLEY DREXEL

Sixteenth Respondent

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)

Seventeenth Respondent

HALPERN GLICK PTY LTD (ACN 008 729 204)

Eighteenth Respondent

Office of the Registry
  Perth  No P46 of 2009

B e t w e e n -

HALPERN GLICK PTY LTD

Applicant

and

CITY OF FREMANTLE

First Respondent

DREXEL LONDON (A FIRM)

Second Respondent

SHARON LEE GOVE (BLACKMAN)

Third Respondent

BARNABY PIERRE COLIN WOOD

Fourth Respondent

PAUL CHARLES BLACKMAN

Fifth Respondent

KYLE THEODORE PETERS

Sixth Respondent

MICHAEL ANTONY KUBA

Seventh Respondent

SHELLEY MERRILYN GOLLAN

Eighth Respondent

MARYANNE FIORE

Ninth Respondent

MIA LEE FARINOSI

Tenth Respondent

TINA ELIZABETH D’CASTRO (ACKERMAN)

Eleventh Respondent

JULIETTE CHLOE VIRGINIE WOOD

Twelfth Respondent

DEAN DAVID HOLM GRAHAM

Thirteenth Respondent

IAN ROBERT MICHEL REGNARD

Fourteenth Respondent

DANIELLE DORISSE ELIZABETH BECKWITH

Fifteenth Respondent

NIGEL KENNETH GILES

Sixteenth Respondent

NEIL ALEXANDER GRANT

Seventeenth Respondent

MARC DREXEL

Eighteenth Respondent

ROBYN LESLEY DREXEL

Nineteenth Respondent

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)

Twentieth Respondent

RICHARD ASH BLACK

Twenty First Respondent

ASH INVESTMENTS PTY LTD

Twenty Second Respondent

Applications for special leave to appeal

GUMMOW J
HEYDON J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 28 MAY 2010, AT 9.32 AM

Copyright in the High Court of Australia

__________________

MR A.S. BELL, SC:   If the Court pleases, I appear for the applicants in P5 and P6, they being the plaintiffs at the trial.  They are also respondents to the special leave applications brought by the architects and engineers.  (instructed by Talbot & Olivier, Bradley Bayly Legal and Mony De Kerloy)

MR G.R. HANCY:   Your Honours, I appear for the first respondent in P6 of 2010, and the seventeenth respondent in P48 of 2009.  (instructed by Dibbs Barker)

MR B.W. WALKER, QC:   May it please the Court, I appear for Drexel London with my friend, MR P. MENDELOW.  We are the second respondent in the first two listed applications and in P46/2010.  We also appear for the applicant in P49 and P48.  (instructed by Jackson McDonald Barristers & Solicitors)

MR G.M. WATSON, SC:   I appear with MR S.F. POPPERWELL for Halpern Glick, the engineers, the applicant in P46, the 18th respondent in P48, and submitting for the third respondent in P6.  (instructed by Pynt & Partners)

GUMMOW J:   Now, you are an ally of Mr Walker, are you not, in P49?

MR WATSON:   Yes.

GUMMOW J:   He has two applications on.  You have – I am not criticising anyone, but you have one which amalgamates grounds 1 to 4 – grounds 1 and 2 in your application in P46 are a complaint which is the same as that of Mr Walker in P49, I think.

MR WATSON:   Yes.

GUMMOW J:   That is right?

MR WATSON:   Yes, and we have also similar interests with Mr Bell in P6 insofar as he challenges the finding in favour of the City of Fremantle.

GUMMOW J:   Now, where do we see your alliance with Mr Bell?  That is in P46?

MR WATSON:   Yes.

GUMMOW J:   Which particular grounds?

MR WATSON:   In P46 ‑ ‑ ‑

GUMMOW J:   P42 of the application book is your grounds.

MR WATSON:   Yes.  Just excuse me, your Honours.  At page 349 of the, no sorry - it is on page 343 of the application book in P46 and it is ground 1.  There is, in essence, two parts to my application.  One is against the City of Fremantle.  The other is challenging the finding that was made in the Court of Appeal against Halpern Glick.  In that second respect, I am on my own.  In the first respect, I am allied with Mr Bell and Mr Walker.

GUMMOW J:   We will hear first – I am sorry.

MR J.T. GLEESON, SC:   May it please your Honours, I appear for the humble City of Fremantle, which is the first respondent in P5/2010 and P46/2009 and the eighteenth respondent in P49/2009, with MR M.H. ZILKO, SC.  (instructed by John Eller)

GUMMOW J:   Yes, we have just been trying to line up your enemies.

MR GLEESON:   I have no applications myself other than to be allowed to sit quietly down the other end of the Bar table for a short period of time.

GUMMOW J:   Thank you Mr Gleeson.  We will deal first with P6.

MR BELL:   If the Court pleases, that, if I might characterise it as the breach of statutory duty appeal in respect to the strata company, and in that Mr Walker and I are in alliance. 

GUMMOW J:   Yes.  We will hear you first and then we will see if Mr Walker wants to add anything to what you have said.

MR BELL:   Yes, your Honour.  The facts in relation to this particular application are in extremely short compass.  I say that at the outset because although this is obviously a long trial and there is a great deal of facts relating to some of the cases against some of the other respondents, in particular the engineers and the architects, they are very fact intensive matters.  The facts, in respect of this application against the strata company are extremely narrow.  Can I indicate the four salient facts?

The first is that the property in question, namely the rotten softwood balcony, was common property.  Second, the strata company did nothing by way of discharge or even attempted discharge of the statutory duty.  Thirdly, the balcony was not in a state of quote, good repair, unquote; it collapsed because of the rotten timber.  It was not quote, properly maintained, unquote, and there had been no quote, renewal or replacement, unquote, even though this was self‑evidently, as a result of what happened quote, quite necessary, unquote.  Your Honours, the reason I have used the word “quote” where I have in what I have just said is because I am using the language of the statutory provision.

GUMMOW J:   Which section?

MR BELL:   It is section 35(1)(c) and your Honours will find it reproduced at the application book beginning at 279 to 280.  I will come to that in a moment if I may, your Honour.  But each of those expressions “good repair”, “properly maintained”, “renewal or replacement” and “necessary”, are words I take directly out of the statute.

So they are the first three facts.  Property was common property, nothing by way of discharge, and the balcony had particular state.  The fourth fact is this.  The only person or entity legally charged with a duty in respect of this common property going forward, namely after the construction of the building, was the strata company, the only entity charged with that obligation.  Your Honour, the burden of her Honour Justice McLure’s reasoning ‑ ‑ ‑

GUMMOW J:   You lost at trial as well, did you not?

MR BELL:   We did.

GUMMOW J:   Is the Strata Titles Act 1966 replaced?

MR BELL:   Your Honour, this provision is in pari materia with the current statutory provision.  The burden of her Honour Justice McLure’s reasoning was to translate or convert a statutory duty which is introduced as your Honours will see at the beginning of the section at 279 with the emphatic word “shall” and which speaks in terms of absolute obligations into something akin to a tortious duty of care and her Honour really is quite explicit about this, and says as much at application book 290.  May I take your Honour to paragraph 236 of her Honour’s reasons for judgment at 290, where halfway down that paragraph she says:

As a preliminary matter, it should be noted that on my construction of s 35(1)(c), there would in a personal injuries claim be no material difference between a breach of a tortious duty of care and a breach of the statutory duty in s 35(1)(c).  That is, a similar duty and standard of care is owed to all users of the common property.

She repeats that in the final sentence at 238:

no material difference between the tortious and statutory duty.

Your Honours, that, we say, is a very surprising conclusion when one returns to application book 280 and examines the text of the statute, and as I develop the argument I will be showing your Honours traces in which her Honour’s reasoning was infected by expressions derived from negligence cases that the strata company – its duty was somehow referable to what they ought to have known.  That is not a concept ‑ ‑ ‑

GUMMOW J:   Just tell us what your case is.

MR BELL:   Our case is this, your Honour.

GUMMOW J:   With reference to the relevant sections.

MR BELL:   Yes, your Honour.

GUMMOW J:   You have to read the sections in a particular way.

MR BELL:   We have to read the sections in a particular way.  We emphasise, and in the context of course of the statute as a whole, that of course, the statute and the statute in this case ‑ ‑ ‑

GUMMOW J:   The statute as a whole is one of your problems, Mr Bell.

MR BELL:   No, your Honour, the statute as a whole assists us, in particular, three provisions which I would emphasise.  The first is the requirement which is noted in paragraph 211 of the judgment at application book 283, a requirement that –

the strata company is required to effect and maintain insurance in respect of damage to property, death, or bodily injury for which it could become liable in damages.

GUMMOW J:   It does not say to whom, that is the problem.

MR BELL:   It does not say to whom, but that is a separate question and I will come to that issue in a moment, but the fact is – and this is of course to be understood in the context of a statute, which as is noted and is common ground, creates no offence for the breach.  Now, that is a very significant matter of statutory interpretation, the absence of any sanction for the breach.  We know from cases like Sovar v Henry Lane and O’Connor v  Bray that the issue there was not withstanding a modest sanction a duty nonetheless arise.  This case really is a fortiori because there is no sanction.  There is no sanction but there is provision for insurance expressly for the risk of personal injury and death.

Now, that rather strongly suggests in our respectful submission that what the legislature was contemplating was that (a) the strata company could be sued in respect of personal injury, et cetera, arising out of a breach of their expressly imposed statutory obligations and, moreover, that the legislature was concerned that such a right not result in a pyrrhic victory by reason of success against a $2 strata company.

KIEFEL J:   But in the end your argument focuses on section 35(1).

MR BELL:   It does, but her Honour in her analysis section does not grapple with that argument and does not grapple with the related argument arising from section 36 of the Act which is set out at paragraph 209.

KIEFEL J:   Does her Honour explain that her approach as being driven by the interpretation of section 35(1) which creates a duty to control and manage properties as paragraph (b) of that section suggests, property as such for the benefit of all proprietors, that is a proprietorial interest?

MR BELL:   Her Honour accepts that there are at least two purposes of the section.  She rejected an argument and she did this in her analysis section at 229.  She rejected an argument that the primary purpose of the section was protective but she accepted that the purposes included safety purposes.  She did that at the end of, she accepted that on page 288 of the application book about line 10, the purposes “include but go well beyond safety purposes”.  Now, that is critical.  There is an acceptance that a purpose at least of this provision was safety.  We come, of course, to the question of in whose favour that protective ‑ ‑ ‑

GUMMOW J:   Well, it is not severable.

MR BELL:   Quite.  Coming right to that question, your Honour, and picking up the very helpful language of Justice Kitto in Sovar v Henry Lane set out at application book 218, one looks at the people, whether described or not, as are indicated by the nature of a peril against which the prescribed conduct is calculated to protect them.  Well, if the nature of the peril is common property in disrepair and if this was, as it was, a strata title development with large balconies which were certified to carry up to 100 people, it is plain, in our submission, that it was not just going to be the proprietors who would use the balcony. 

The problem with what her Honour said on the so‑called notice of contention point, was such duty underwritten by or underpinned by considerations of safety, did it extend to lawful visitors, her Honour’s reasoning produces, with respect, a most bizarre and perverse response because it means this.  If at that party, as in fact on New Years Eve, as in fact there were, there were proprietors and their guests and the proprietor and his or her guests were standing next to each other on the balcony when it collapsed and both sustained injuries, the burden of her Honour’s reasoning is that one would have a common law claim for breach of statutory duty but one would not.

That is, in our respectful submission, a most surprising consequence and one which one would not readily attribute to the legislature.  After all, the provision and the requirement for insurance to include provision for insurance in respect of personal injury or death in that section of the statute which I have already referred your Honours to is not confined to claims against the strata company by proprietors, it is open ended.

The statutory obligation is to get an insurance policy up to a certain limit to cover for claims against the strata company for personal injury or death, period; no restriction, no confining.  It makes sense, it obviously makes sense, because, as I say, this was a residential development in which in the ordinary course and known to the legislature ‑ ‑ ‑

GUMMOW J:   What about the long title to the Act?  What about the long title to the statute, does that have no significance?  You said we should look at the whole thing.

MR BELL:   Well, it is of some significance, but I think it includes “and other purposes”.  Now, her Honour accepted and it is not challenged that one purpose of this provision was safety.  Her Honour seemed to use the fact that that was not the primary purpose as a reason for her particular construction.  Can I indicate to your Honours why we say ‑ ‑ ‑

KIEFEL J:   You could have a purpose being safety which is to the benefit of proprietors without creating a duty of care akin to tort, can you not?

MR BELL:   You could, but is it likely in a residential development where ‑ ‑ ‑

KIEFEL J:   Well, it depends on the purposes of the Act.

MR BELL:   Well, it depends on the purposes, but one purpose, it is accepted, was safety.  Now, your Honours, in terms of her Honour’s analysis, at paragraph 232 she uses the fact – her rejection of the fact that a primary purpose was not safety – to justify her conclusion, but it is by no means obvious how that comes about.  Then, your Honour, in our submission, she goes on to attribute an interpretation which has a differential effect between proprietors, because her Honour’s reasoning accepts that a proprietor could sue for breach of statutory duty in circumstances where they had sustained a personal injury.

KIEFEL J:   Perhaps her Honour need not have gone so far.

MR BELL:   Well, her Honour did, and that is currently the law in Western Australia unless clarified by this Court.  Your Honours, in summary, we submit that there are five strong reasons for the grant of special leave on this application.  First, we submit that there are clear errors of principle - her strong focus on the decision of the New South Wales Court of Appeal in Ridis, which was a common law case, duty of care case, not a breach of statutory duty case at all, but even if the errors are not clear we say that they are strongly arguable. 

Secondly, we submit there is a clear clash between this case and the New South Wales decision of Justice Brereton in the case of Seiwa, which it may be that Mr Walker will refer to, but it is at tab 10 of the Drexel London authorities, where his Honour Justice Brereton treated the equivalent provision in the New South Wales Act as imposing absolute obligation.  So there was a tension, and more than a tension, a clear inconsistency between a decision of a very respected New South Wales judge and the Western Australian Court of Appeal about sections which are in pari materia – a classic occasion for this Court to consider a grant of special leave.

Thirdly, the finding has obvious ramifications going well beyond the facts of the present case because it applies at the very least to all strata companies in Western Australia, and it has implications for their insurance arrangements.  Bearing in mind – I meant to take your Honours to the section, but at application book 282 in paragraph 209:

A strata company is obliged to establish a fund –

inter alia, to pay for insurance premiums.  It is a powerful, powerful consideration which her Honour just did not address, with respect, in her analysis. 

The fourth matter we would emphasise in support of a grant of special leave is this, that this is not just a case brought by a single injured plaintiff.  It is a case brought by 16 plaintiffs.  That immediately distinguishes it from the ordinary run‑of‑the‑mill application.  It has significance for not just one injured person, as is the typical case, but 16, and for the other reasons I have mentioned it has a broader significance.

Finally, your Honour, as I have indicated, the facts on this application are in extraordinarily narrow compass.  They can be stated as

crisply and succinctly as I did at the outset, namely for relevant, uncontested facts.

KIEFEL J:   The decision of Justice Brereton to which you have referred did not involve a claim for personal injuries and damages.  Was it one for damaged property?

MR BELL:   Yes, it was, your Honour, but that, with the greatest respect, would not be a valid point of distinction.  It cannot be that the same statutory language means one thing when the claim is for damage to property, and another thing when the claim is for personal injury damages.  So that tension – no, it is more than a tension, it is a stark inconsistency.  What her Honour Justice McLure did was to put this decision to one side and to focus on the New South Wales Court of Appeal’s decision in a case called Ridis, which his Honour Justice Brereton distinguished correctly because it was about and only about in the Court of Appeal a claim for common law damages, and in any event, a decision which has a very strong dissent insofar as questions of statutory duty are addressed by Justice Tobias.

So there is a 2:1 decision of the New South Wales Court of Appeal which has marginal relevance, there is a strong decision of Justice Brereton on legislation in pari materia which is flatly inconsistent with her Honour’s analysis, and then one has the decision in the Court of Appeal which is attended, in our submission, by sufficient errors to warrant this Court’s appellate intervention, or at the very least consideration on an appeal.  If it please the Court.

GUMMOW J:   Yes, Mr Walker, do you want to add anything?

MR WALKER:   Your Honours, I have very little add.  I respectfully adopt what my learned friend has said.  In our submission, as to the last question Justice Kiefel addressed to my friend, it would be, in relation to the tort of breach of statutory duty, unprecedented to perceive that it provided a private cause of action for somebody who would otherwise have to bear out of their own pocket building costs, but not provide compensation for somebody injured by reason of the common property that needed to be repaired. 

The impulse or imperative in relation to the protective purpose of a statute when the question arises whether a tort exists upon which private action can be had, are matters which, in our submission, respond far more readily when matters of physical safety are involved than when one is merely talking about financial loss.

Your Honours, in relation to the “statute as a whole”, to use my learned friend’s expression and to return to a matter that Justice Gummow raised with my friend, could I remind your Honours, as Justice McLure herself noted in paragraph 210, that under section 39 the considerable powers of entry and work given to the corporation are specifically provided for in cases of what I have called “emergency”.  They specifically include powers with respect to the section 35(1)(c) obligation to which focus is given in this case. 

That notion of emergency, in our submission, cannot sensibly be understood bearing in mind the balance of private property and protective purpose in the statute otherwise than by reference to situations which threaten not merely financial loss for the corporation, but also physical damage, for example, to passers‑by, neighbours, or occupiers.

GUMMOW J:   One view of it is that this Act, if one goes to section 4 and looks at section 4(2), it was creating a new species of distinct property registrable under the Torrens system, but as Justice Rath recognised when he was drafting it, there would have to be a regime for relations inter se between those who had owned these distinct items of property, and that is what the Act is about.

MR WALKER:   Yes, now that then raises a question, what is the role of the corporation with respect to common property?  One thing that is done by section 35 ‑ ‑ ‑

GUMMOW J:   This corporation was created as part of that scheme.

MR WALKER:   Quite so.  That artificial person that is created is given duties and correlative powers.  One of the observations that we would make is that with respect to common property, that corporation is being assimilated to the position of, for example, an owner in possession at common law.  An owner at possession at common law plainly has, of course, obligations in relation to a common law duty of care to those who might be injured by the disrepair of the premises, whether it be under the old rubric of occupier’s liability or otherwise.  In our submission section 35 is extremely apt on orthodox approach to be construed as a statutory equivalent in this statutory artificial scheme for this new form of ownership of that very familiar common law obligation.

Section 36, which is the compulsory levy power is, of course, a power which is commensurate with the cost of the obligations imposed on the corporation, including the section 35 obligation with respect to repair.  That leads to the rather odd observation implied by paragraph 241 of her Honours reasons that the breach of the repair obligation is one that does

give rise to a cause of action at common law for breach of statutory duty but only to the people who are obliged to pay the contributions.

GUMMOW J:   Why is that an irrational view of how the system works, bearing in mind what I was just saying to you?

MR WALKER:   Because, with respect, the common law has never said that your duty of care is not as well owed to the postman who walks from your gate to the front door as to your co‑owner.  Indeed, your co‑owner might be expected in the ordinary course to know far more about the bad state of the pathway than the postman would.  In our submission, paragraph 241 of her Honours reasons, together with paragraph 237, is a reason to doubt, with respect, the correctness of the outcome but certainly for this Court to take the case so as to pronounce in a way which, in our submission, would provide a far more coherent approach to the detection whether there is a private cause of action for personal injury suffered when a failure to comply with section 35 leads to the rotting of timbers and the tumbling down of the balcony.  Under paragraph 237 ‑ ‑ ‑

GUMMOW J:   Now, you said that you were going to be short, Mr Walker.

MR WALKER:   Yes, I have one sentence to go.  Under paragraph 237 her Honour introduced a concept which, in our submission, is novel in this area, namely a resemblance to contractual duties of the statutory obligations in question.  In our submission, there is nothing about their framing and there is nothing about the analogy that her Honour otherwise perceives - see paragraph 236 - with the common law duty of care that renders that an appropriate or principled approach to the interpretation of this statute for the purposes of the tort of breach of statutory duty.  May it please the Court.

GUMMOW J:   We note that there are submitting appearances from the third to sixth respondents.  We do not need to hear from you, though, Mr Hancy, for the first respondent.

An appeal to this Court would turn upon the construction of provisions of the strata titles legislation of Western Australia.  We are not satisfied there are sufficient prospects of success in demonstrating error in the conclusion reached by the Court of Appeal to warrant the grant of special leave.  Special leave is refused with costs.

Call matters P5, P49 and P46.  Now, Mr Bell, you have allies in this dispute.  You have an ally in Mr Walker and you have an ally in Mr Watson.  Is there any arrangement between you as to ‑ ‑ ‑

MR BELL:   I was going to go first, I had assumed.

GUMMOW J:   Well, I would have hoped you would co‑operate with one another, frankly.

MR BELL:   I had understood that P5 was listed second and I am the applicant in P5.  That is why I assumed I would go first, your Honour.

GUMMOW J:   Very well.  It does not redound to the credit of a row of barristers, but go on.

MR BELL:   Your Honour, we submit that this application against the council of the City of Fremantle presents a compelling case for special leave for the following reasons.  The first point already made this morning, this is not a case involving one plaintiff or one applicant, but a case involving some 16.  The City, relevantly, does not challenge the finding that one of the primary causes of the catastrophe was the use of oregon rather than specified hardwood on the deck.

GUMMOW J:   We know all this, Mr Bell, now what is the point?

MR BELL:   The point I am introducing, your Honour, is this.  Again, the facts on this application are in incredibly narrow compass.  They are confined to a pure question of law, the duty question.  That is because, your Honour ‑ ‑ ‑

GUMMOW J:   Where do you say the Court of Appeal erred in finding for Mr Gleeson’s client on this point?

MR BELL:   Your Honour, the error is revealed in the contrast between paragraph 261 at 295, and the reasoning at 272 through to 274.  Paragraph 261 – and I can summarise the point in this way.  The council under 374 and 401 of the Local Government Act need to approve plans and specifications and they do so, notwithstanding a submission rejected below by the City, having regard to and with a view to considerations of safety.  That is the important proposition.  So the initial approval is motivated by considerations of safety.  One then moves to the second stage, that is to say the stage under 5(6)(c) of the Act, which is relevantly set out at application book in P5 at 292, where an inspection occurs.

Now, what was submitted below and what her Honour rejects in paragraph 261 is that in that inspection the purpose of which is to certify consistency with the building plans and specifications, the council submitted and her Honour rejected the notion that there was any continuing operation of concerns or consideration of safety.  Her Honour rightly rejected that. 

One of the purposes of the statutory inspection by the council to ensure consistency between what was done and what was created was a safety concern.  So that emerges very clearly from paragraph 261 but then her Honour, with respect, retreats or does not reconcile that fact with what emerges from paragraphs 272 and 273.  She refers to her earlier discussion of safety considerations in the first sentence of 272 but then your Honour when one comes down to the fifth line:

But it cannot be said that the purpose -

as though there was a single purpose, which there was not.  The Act, the short title refers to a purpose and other purposes -

and object of the City’s duty under s 5(6)(c) of the 1966 Act is the prevention or mitigation of harm to visitors of the building.

Well, our submission is, query, why ever not, given her Honour’s acceptance that safety continues to permeate not only the initial approval stage but the inspection stage.  Her Honour continues:

It goes no further than preventing the registration of a strata plan in the absence of a successful appeal.  That only protects purchasers of prospective strata title lots -

So, her Honour, in this reasoning, having accepted that safety continues to be relevant, just excludes it, just excludes it.  That is, in short form the error which undermines and vitiates the reasoning of the majority decision against the council.  We emphasise this was a majority decision.  Both at first instance Justice Templeman held without any real difficulty ‑ ‑ ‑

GUMMOW J:   Now, do you rely on any particular portion in the dissenting reasons?

MR BELL:   Yes, your Honour.  The reasons of Justice Martin ‑ ‑ ‑

GUMMOW J:   Mr Gleeson criticises them for being somewhat ambulatory rather than sufficiently focused.

MR BELL:   Your Honour, if that is a criticism of form it is a matter for ‑ ‑ ‑

GUMMOW J:   No, criticism of intellectual substance.  Mr Gleeson may be right or wrong but that is what he says.

MR BELL:   What his Honour, with respect, does is take the various criteria which have emerged from decisions of this Court in grappling with the difficult questions of whether a duty of care exists in particular circumstances.  He has looked at the language of those decisions.  He has looked at the informing concepts and he sought, in our submission, in a perfectly legitimate way, to indicate why he thinks, taking into account those criteria, they support the existence of a duty of care.  He has, in doing so, done so in a succinct way, appropriate in our submission for a dissenting judgment but not in an overly succinct way and what he has also done is to rebut some of the reasoning of the plurality. 

So, for example, her Honour Justice McLure, seemed to adopt, as part of her reasoning, there was no evidence of reliance by the visitors on the balcony.  Now, one, query whether that was a legitimate consideration to take into account in a context of this kind, that personal injury ‑ ‑ ‑

GUMMOW J:   What do you say about Mr Gleeson’s written submissions in paragraph 23(l), where he says:

As the majority correctly pointed out, there was no power vested in the City under the 1966 Act to compel an applicant for a strata plan to bring it into conformity with the approved plans and specifications . . . despite this conceded lack of power –

the dissenting judge concluded, et cetera –

Reference to a “commercial whip hand” does little to aid the legal analysis . . . no case was ever pleaded –

based on section 401 of the Local Government Act?

MR BELL:   The pleading point about section 401 can be readily put to one side. That was not something which needed to be pleaded. It was something which informed the analysis of whether or not there was a common law duty of care. That can be put to one side, in our respectful submission, and it was common ground I think at least, that at the 401 stage safety considerations did enter into it.

The substance of the criticism in paragraph (l), with respect, your Honour, flies in the face of credulity, because if, as was found to be the case, as the trial judge held in a passage noted by Justice Martin that had this inspector noted the problem, and this is at paragraph 320, application book 308, about five lines down:

Had Mr Monaco –

he was the inspector –

noticed the substitution of softwood for hardwood, his evidence at trial was that he would not have regarded such a substitution as appropriate -

from which you readily infer that he should not have certified the building ‑ ‑ ‑

GUMMOW J:   That goes to breach.

MR BELL:   It goes to breach but, your Honour, the absence of a power does not drive the conclusion because as a matter of obvious practicality, if the purpose is to certify and if there is in fact no certification, council has it within council’s control as a matter of practice and everyday reality to draw this development to a halt until the inconsistency is rectified.  It does not need power because it is so obvious, with respect, that that would be the inevitable practical consequence of the non‑issue of the certificate.  If there is not an issue of a certificate, this building is worth nothing as a commercial commodity.

People are not going to be able to trade in the units of this building, et cetera, and that is the point, but in any event, your Honour, that is but one – that paragraph (l) criticism, and there may well be room for debate about the significance of the presence or absence of it - of a number of factors which his Honour Justice Martin, in our submission, correctly and persuasively, identified as tending strongly in support of the existence of a duty of care.  When one couples that with the real and irreconcilable tension in the majority judgment, in our submission the case for a grant of special leave is powerful ‑ ‑ ‑

GUMMOW J:   Are you winding yourself into a coda?  Are you coming to the end?

MR BELL:   I am, your Honour.

GUMMOW J:   We are going to call on Mr Watson next.

MR BELL:   There are five reasons for the grant, in our submission:  one, the multiple plaintiffs, 16 separate claims; second, the intermediate appellate court is split on the very question; thirdly, the question raised is discrete and manageable because, as I said, there is no issue about the facts and there is unanimity that if a duty was owed it was breached and was the cause of the loss - the Court of Appeal make that finding and there is no suggestion that that finding was not open or was wrong; fourthly, the matter is of public importance and its significance plainly extends beyond the facts of this case.  It extends obviously in Western Australia but also, for example, in Queensland.  There is a very similar provision in the Building

Units and Group Titles Act section 9(8)(b) of that Queensland legislation, and a copy of that has been provided at tab 3 of Mr Walker’s submissions.  In our submission, finally, there was either a clear error, or there is a sufficiently strong arguable case as to whether or not this duty exists that the Court should grant special leave.

As a final matter, your Honours, lest there be any thought that, well, the plaintiffs have succeeded against the engineers and architects and therefore what is the real significance of this appeal, or this application, by the injured applicants, I just draw your Honours’ attention to paragraph 10 at 339.

GUMMOW J:   What does that tell us?

MR BELL:   It is evidence to the effect that notwithstanding success against the architects and the engineers there is very limited insurance recovery available.  That is to answer any notion that this might be interesting but hypothetical from the plaintiff’s point of view.

HEYDON J:   You said paragraph 10 at ‑ ‑ ‑

MR BELL:   Page 339C, your Honours, paragraph 10.  If it please the Court, they are our submissions.

GUMMOW J:   Yes, Mr Watson.

MR WATSON:   There are two parts to my application ‑ ‑ ‑

GUMMOW J:   We are hearing you on grounds 1 and 2 in your draft notice?

MR WATSON:   Your Honours, may I respectfully adopt the submissions of Mr Bell and add only just some very short references.  In paragraph 263 of the judgment of Justice McLure the point is made foreseeability was not an issue.  At paragraph 266 the difficulty which arises, depending on whether it is an act or omission, does not arise here.  It was not an omission case.  At paragraph 269 her Honour’s finding was that the relevant part of the statute created a duty – that was the word used – the duty was bifurcated, first, to determine the consistency with the plans, et cetera, and the second is “to undertake an inspection”.

The comments at the start of paragraph 270 we would respectfully adopt as being statements strongly in favour of finding a duty of care.  The very fact that that which had to be done to discharge the duty favours a finding that it exists.  Finally, I just refer your Honours to paragraph 277 to

show your Honours that the question is not arid in the event there is a duty found, her Honour found that it had been breached.

GUMMOW J:   Yes.

MR WATSON:   Your Honours, that is all I wanted to say about the first part of my appeal against the council.  Would your Honours wish to hear me now about the appeal ‑ ‑ ‑

GUMMOW J:   No, we will come back to that later on, thank you.  Yes, Mr Walker.

MR WALKER:   Your Honours, I just wish to add one comment in relation to the matter of my friend, Mr Gleeson’s paragraph (l) argument.  There are two matters.  First, the question of what, if anything, the council could do, as opposed to the Minister, in our submission, might more properly be seen as involved in a causation of loss question which is not really seriously in contest in this case.  Second, and as a matter of principle, the accepted genesis of the plans, consistency with which is the object of the obligation under the statute includes, most obviously, safety, that is structural integrity does not simply anchor the physical borders of this new form of title, it also obviously enables the building which contains title for lots in the air from falling down and hurting people.

In our submission, letting that new form of title into commerce which is the place of this mandatory inspection under this provision is, of course, tantamount to letting people use it in the ordinary way of residences and places to visit.  In our submission, it is plain that the danger from shoddy work, therefore, which arises from failing to inspect properly, arises directly from failing to attend to the statutory duty imposed before the property can be put into commerce. 

One does not need the metaphor of whip hand, it is simply literally describing the steps under the statute which demonstrates that the protective purpose for which the plans and specifications themselves were originally approved remains, of course, in relation to whether those plans and specifications approved to guard, amongst other things, safety, have in fact done so.  May it please the Court.

GUMMOW J:   We do not need to hear from any opponents to the application for a grant of leave against the City of Fremantle.  We see no error in the conclusion by the majority of the Court of Appeal that the City of Fremantle did not owe a duty of care to the injured plaintiffs in this case and in each application special leave is refused with costs.

Call P48.  Yes, Mr Walker.

MR WALKER:   Your Honours, there are only two points remaining in this, bearing in mind that the third involved the strata title, which we take it, has been disposed of.  Your Honours, may I first take you to the way in which the trial judge put on our first point concerning the anomalous finding of negligence against an architect for want of engineering skill, to how the trial judge put it at pages 49 and 50 of the application book.  In paragraph 152, Mr Drexel, being my client, an architect, in item 2 on page 50, the trial judge found in a way that is not departed from in the Court of Appeal, that:

even an experienced architect . . . would [not] have been so foolish as to design a substantial structure such as the balconies –

et cetera –

without advice from a structural engineer.

He was not so foolish; he did obtain such advice.  Could I now take your Honours to page 256 in the application book.  In paragraph 105 one sees, about line 25 on the page, that the Court of Appeal chimes in with that commonsense proposition, namely:

A project architect would be expected to seek structural advice from the project engineer.  Indeed, Halpern Glick was retained on the recommendation -

Your Honours, that really contains what, in our submission, are the plain, clear, confined, matters of fact and judgment concerning the proper conduct of an architect by which, in our submission, the finding against us of negligence, by reason of a failure of the engineering specifications, should not, in justice, be maintained against the architect, that the court should not, as a matter of common law conclusion – true, on the particular facts of this case as it had to be – say in a way which can easily be generalised because of the way in which it was pronounced, that architects will be liable for negligence even though they should not themselves be doing the particular part of the project work in question, namely engineering.

KIEFEL J:   You say there is no breach by the architects?

MR WALKER:   Yes.  No negligence, that is what I mean.

KIEFEL J:   Did not the Court of Appeal say that the defence by the architects was only limited to causation, I think at 271?

MR WALKER:   I am so sorry, your Honour, did your Honour say 271?

KIEFEL J:   I might have taken a wrong note about that.  I might be in error about that, Mr Walker.  Please proceed and I will see if I can pick it up.

MR WALKER:   I am sorry, your Honour.  Our aim is only and squarely at a holding of negligence.  In our submission, and I cannot elaborate the point, the facts of course, are special to this case, but there is nothing unusual about the proposition pronounced by the trial judge as I have shown you, accepted by the Court of Appeal as I have shown you, that for matters of structural engineering, of course an architect should use a structural engineer, and he did.  In our submission, it is therefore anomalous – does not lend itself to an explanation to architects, engineers or their customers, as to why there should be a finding of negligence in that situation.

It is not in particular some unarticulated form of what I will call non‑delegable duty.  The duty of the architect to recognise that he needed engineering expertise can be easily accepted and it was fully discharged.  That is the first ground.  I stress there is an obvious element of the justice of the individual case as well as what, in our submission, is the generalisable proposition with its anomalous qualities concerning architects being liable for engineering matters beyond their expertise.

The second ground is even more obviously based upon the particular facts of this case.  It is, therefore, all the more in need of the individual justice of the case.  It does, however, raise some matters of general principle, albeit concerning factual reasoning in a causation and foreseeability inquiry.  Could I take your Honours please to the reasoning which commences at paragraph 178 of her Honour’s reasons?

GUMMOW J:   Paragraph 178?

MR WALKER:   Paragraph 178, page 272 of the book.

GUMMOW J:   Thank you.

MR WALKER:   If your Honours will bear with me concerning the facts, they may be briefly stated as follows.  The design of the balcony members included a junction required between metal and timber.  The metal was actually designed with engineering input in such a way that it would produce what is called in the reasons a “moisture trap”, an evocative expression which adequately describes the effect.  The moisture trap meant that the housed timber connected – abutting with the metal was exposed to moisture of a kind which and in conditions which the experts said affected some timbers.

Now, my client specified jarrah.  The builder used oregon.  They are, on the evidence, at the two extremes of the relevant range.  Oregon, even without a moisture trap, with external use is dangerous.  With moisture the experts were united in their denunciation of the danger of its use, but, of course, we were not negligent by permitting oregon.  We did not permit oregon.  We specified structural grade jarrah.  At paragraph 189, application book 274, her Honour notes among – this is not the only – the evidence of experts what Dr Evans, a structural engineer, said – and in our submission one sees in what is quoted at that passage, a refutation of the notion that this is simply a matter of degree that jarrah was, as it were, not as bad as oregon but was on the same continuum of a danger presented by it being exposed to moisture in a so‑called moisture trap.

KIEFEL J:   Her Honour’s conclusion at paragraph 192 seems to be that where there is a moisture trap between the plates and the steel support beam, I think it was, that would have, if they had have been eliminated in design, that would have eliminated or reduced the level of rot, whether you use oregon or not.

MR WALKER:   In paragraph 192, that is what her Honour calls factual causation and the finding in the second sentence about line 25 on the page is in relation to what actually happened, that is the wrongful use of oregon.  That is not a finding which addresses or refutes the proposition that the balcony would not have fallen had jarrah been used. 

KIEFEL J:   I see.

MR WALKER:   I think, however, your Honour, with great respect, has in mind a passage just above, two inches above that, at about line 17:

Jarrah rots but at a much slower rate than oregon.

However, in our submission, the evidence that I have taken you to does not support her Honour substituting without reason her own view of what the trial judge had found, namely that the risk for the foreseeability inquiry of moisture trap and jarrah leading to collapse was remote, that is, outside that which required a response by reason of the duty of care that is obviously imposed on people who design balconies that people are going to tread on.

Given the evidence that I have drawn to attention at 189, given the fact that there is nothing to permit an aggrandisement of the foreseeable risk beyond what the trial judge described as remote, in our submission, an injustice has been done to my client so as to hold foreseeable that which the trial judge found remote, which the Court of Appeal does not explain why it is not remote, on the basis of evidence that in truth rendered jarrah, as he had specified, something which would eliminate a risk from a so‑called moisture trap.  This is a familiar aspect of a design with various components, that something which in itself, on its own, as it were, or without some other element might be dangerous.

KIEFEL J:   But her Honour just dealt with it as a causation issue raised by the notice of contention.

MR WALKER:   Yes, while criticising, with respect, the trial judge for confusing or eliding distinctions between the initial foreseeability inquiry, a so‑called foreseeability inquiry when it comes to assessing negligence or not and then a factual causation question.

KIEFEL J:   But if you do not, if you eliminate the moisture trap you do not have wood of either kind rotting and you have a sufficient contribution, do you not, towards what occurred?

MR WALKER:   I cannot and do not and would not seek special leave in relation to the causation finding in 192.  The oregon did rot and the moisture trap did contribute to that.  That is clear beyond demonstration.  We are saying that it was simply not foreseeable that his design with moisture trap and jarrah would have any risk of such rot.  He is not responsible for moisture trap and oregon.  He did not design something where you could pick and choose the components of the design and it is for those reasons, in our submission, that her Honour has herself, with great respect, illegitimately used a factual causation proposition which, with respect to her, is clearly right ‑ ‑ ‑

KIEFEL J:   The threshold question is whether or not you should design for a certain level of redundancy.

MR WALKER:   Your Honour, it is not really expressed in that fashion.  Her Honour does not find, nor is there expert evidence to conclude, that every component needs, as it were, to be able to back up for the critical absence of other components in a design.  Certain levels of redundancy were debated in an entirely different part of the case not to do with the moisture trap.  There was no evidence to suggest that a moisture trap so‑called is itself, by reason of notions of redundancy or precaution against departures from plan, an item of negligence. 

Concentrating on the question whether it was foreseeable so as to impose a duty, the content of which involved avoiding the moisture trap, in our submission, her Honour has, without cogent reason, substituted a judgment which required expert evidence to support it in a way that has rendered my client liable in negligence for a design which was radically different from that which left his hand.  May it please the Court.

GUMMOW J:   I take it you oppose a grant in this matter, Mr Watson?  What do you want to say about it?

MR WATSON:   Your Honour places me on a knife edge with that.  If Mr Walker receives special leave we would say that ours is a powerful case for special leave because the very paragraph of Justice McLure’s judgment upon which he relies, paragraph 105, was one in which her Honour really swept aside very strong favourable findings of different kinds in favour of Halpern Glick.  We say that we can proceed alone without the architects, as it were, but if the architect’s appeal does go forward that very paragraph would be at the heart of our challenge to the finding against us, and I will explain briefly why.

In the trial court, Justice Templeman made these findings to which I have referred.  They included favourable findings in respect of each of the Halpern Glick witnesses on the basis of credibility and reliability, and they included very specific findings that Halpern Glick was not involved in the relevant processes of design.  May I take your Honours to those findings?  They are conveniently within Justice McLure’s judgment commencing at paragraph 36.  This is where her Honour is summarising the findings of the trial court, the trial judge, a hot contested trial:

the trial judge did not accept Mr Drexel’s evidence that the structural information was provided by Halpern Glick.

Another example at paragraph 40 of Justice McLure’s reasons records that:

The trial judge found that Halpern Glick was not asked to check the balcony drawings or (with one exception) to provide any of the missing detail.

Another example, paragraph 46, Mr Welch, a critical witness in the hearing, was a site inspector employed by Halpern Glick.  He had a limited job.  He had in the last two lines:

to check work in progress –

Over the page:

The trial judge accepted Mr Welch’s evidence –

et cetera.  These are powerful findings and they wind up at paragraph 53 with her Honour recording that:

The trial judge accepted Mr Welch’s evidence generally.  Based on that evidence he found that although the Drexel London drawings had been given –

et cetera.  It was on the basis of those findings, which as I say, incorporated credibility, reliability findings, that the trial judge acquitted Halpern Glick of any negligence.  At paragraph 105 that is swept aside by her Honour.  It is true paragraph 105 comes at the end of a discussion including mention, merely by reference to the cases, to the importance of credibility findings and the like.  Your Honours will see that in paragraphs such as 115 through to 117.  We would respectfully submit that what happened was that her Honour impermissibly went too far in finding those facts.  May it please the Court.

GUMMOW J:   Thank you.  Mr Bell.

MR BELL:   Your Honour, in relation to Mr Walker’s two grounds, and he needs to get a foothold in both because they were independent grounds to sustain the findings against the architects, in relation to the first ground which built upon paragraph 152 of Justice Templeman’s decision at first instance, her Honour deals with that expressly in a passage Mr Walker did not take you to at application book 262.  Can I take you to that?

KIEFEL J:   Paragraph?

MR BELL:   Paragraph 131, your Honour.  Her Honour picks up 152 of the trial judge’s judgment beginning at 131 but says:

It is unclear from the context whether the trial judge is referring to all the structural information obtained from the engineer or just the detailed structural information provided, such as the detailed code numbers for the trubolts and the bolts holding down the column base plates.  I am inclined to the view that it is the latter for two reasons.

Just pausing there, that is significant because liability did not turn on anything to do with what she describes as “the latter”; the type of trubolts used, et cetera.  It turned on a much more basic design issue - the failure to provide a redundancy.  That is a very important point.  Her two reasons are set out at 132, and importantly we emphasise the second of those:

Mr Drexel had both training and experience in structural matters.  Mr Drexel’s evidence was that Drexel London came up with the design for the balconies –

and the finding of liability is about design –

and all it wanted was for Halpern Glick to help it size and check elements.  He felt it was unnecessary for the engineer to do engineering calculations and engineering drawings in order to design a structurally sound balcony.

There is an important passage of cross‑examination at 133.  He was questioned about this very point which Mr Walker seeks to rest his case on, a sort of a bright‑line division between architectural discipline and engineering discipline, and the answer is:

Oh, my goodness.  I might remind you that –

we studied engineering for four years as part of architectural course.  Mr Drexel is in fact saying on oath that he had the wherewithal, albeit he was badged an architect, he had sufficient engineering knowledge to do something such as a design, which may or may not include redundancy.  Also back at paragraph 39 of the judgment in the Court of Appeal, your Honour, at application book ‑ ‑ ‑

GUMMOW J:   We have 39.

MR BELL:   Sorry, your Honour, I have Mr Watson’s book because I was following him.  But paragraph 39 in the Court of Appeal, Mr Drexel is giving evidence and he says he:

did so because, in his experience, engineers specified minimum sizes.  He said it was not uncommon for him to improve on an engineer’s specifications and that he was competent to do so.

My learned friend’s submission on this first ground is, with respect ‑ ‑ ‑

KIEFEL J:   Her Honour regarded it as a question of overlap or shared responsibility.

MR BELL:   Quite, and that is a fact.  There was a factual question.  There was an assessment made on the facts of that particular case, plainly open to her Honour, especially in light of Mr Drexel’s front‑foot evidence that he actually knew about these things and so, your Honour, the first ground, does not, in my submission, get a leg in.

GUMMOW J:   Yes, but what do you say about the second?

MR BELL:   I will come to the second, but if I am right about the first ground, then that is sufficient to hold the appeal, and so there is no utility in any appeal on the second ground.  So Mr Walker goes from, admittedly, appealing to the visitorial jurisdiction with the second ground, but with no purpose or effect if the first ground was open to her Honour and it was not an appropriate ground for the grant of special leave we would hold it in any event. 

As to the second ground, your Honour, again, with respect, the whole of the evidence needs to be taken into account, and at paragraph 190 in the paragraph which immediately follows the evidence of Dr Evans which Mr Walker took you to, subsequent evidence, Dr Evans:

agreed that it was wise to avoid a moisture trap in any timber but it was critical with oregon.

There is also at paragraph 185, other evidence that a –

Mr Phillips said the catastrophe could have occurred regardless of what timber was used if the balcony was fully loaded and the other defects were present -

a conclusion - evidence which plainly supports her Honour’s view in the passage criticised by my learned friend.  Dr Evans, it is important to note, although he gave evidence, he was the person who designed the replacement balcony.  The others were looking – and he said this is what I did and then he happened to be cross‑examined on that issue, but Mr Phillips, et cetera, and the other witnesses her Honour refers to, were the witnesses who principally addressed the question of breach.  So that is our answer.  It is at a factual level and it was open to her Honour to find that there is no point of principle at all in that ground, and in any event it is redundant if I am right in respect of what I say about the first ground.

The third matter, your Honour, is this.  At first instance we succeeded against the architects on two grounds, one of which we held, one of which we lost, but one of which we picked up.  If special leave were granted we would by notice of contention seek to restore the trial judge’s findings ‑ ‑ ‑

GUMMOW J:   This is a threat, is it?

MR BELL:   Your Honour, my clients are trying to hold ‑ ‑ ‑

HEYDON J:   There is no need to tell us this.  You can do it as of right.  You do not need any leave.

MR BELL:   No, but I am just indicating, your Honour, why it is inappropriate for the grant of special leave, because the notice of contention point which would seek to restore the trial judge’s finding was a finding that Mr London and I think Mr Drexel, but Mr London certainly, in fact saw that

oregon had been used.  The evidence at the trial was the difference to people like architects is the difference between red wine and white wine.  He conducted an inspection.  The notion that he did not see it is difficult to accept.  The trial judge took that view.  Her Honour, Justice McLure reversed that finding, and that involved a very fact‑intensive exercise.

The appeal took four full days, and a lot of it was dealing with two factual questions:  one, that one, was it open to the primary judge to find that Mr London had in fact seen that it was oregon, and if it was, the conclusion flowed that he, at that stage, had an obligation, a duty of care to draw attention to that as a problem, and the other big factual issue at trial was a point which, introduced by Mr Watson, whether or not the engineer to whom the plans were shown at the outset was Halpern Glick or some other engineer.

The trial judge held in reasons which her Honour Justice McLure found to be quite unconvincing, and she has expressed strong views that no, it clearly must have been Halpern Glick.  Now, that is another big factual issue on which we succeed and which our friends, as I apprehended, Mr Watson would seek to challenge.  Can I just inquire, your Honour Justice Gummow, it was not entirely plain to me whether you had invited Mr Watson to address on his own application.

GUMMOW J:   No, only grounds 1 and 2.

MR BELL:   Yes, so we have some separate things obviously to say.

GUMMOW J:   You may not yet be finished.

MR BELL:   No.  They are our submissions in respect to Mr Walker’s.

GUMMOW J:   Yes, Mr Walker.

MR WALKER:   Your Honours, the reference in paragraph 133 of the reasons to “altering the engineering information” is to what is called “upsizing”, in other words, increasing strength.  That says nothing whatever about a man claiming to be able to substitute an opinion so as, for example, to make something less strong.  The reference in paragraph 190 on the foot of page 274 to Mr Evans agreeing it would be “wise to avoid a moisture trap” is not a finding that Mr Evans, whose evidence concerning the risk relevant to foreseeability of jarrah rotting is set out in the preceding paragraph, was other than remote, as found by the trial judge.

The same thing is true, with respect, concerning the evidence of Mr Ryan noted at paragraph 187.  In our submission, bearing in mind the 14‑year lapse between the building and the collapse, it is obviously remote

if “by that time”, according to Mr Ryan, there would be nothing of any significance structurally, and one sees that at paragraph 186.  For those reasons, in our submission, the points we have made about the clarity of the facts upon which the trial judge relied to that end remain correct.  May it please your Honour.

GUMMOW J:   Thank you.  Call No P46.  Yes, now we will hear your, Mr Watson, on your remaining ‑ ‑ ‑

MR WATSON:   Your Honours, really in substance what I had to say before in response to Mr Walker is what I would say in support of our application for special leave.  I cannot pretend to your Honours, on behalf of Halpern Glick, that the factual matters raised raise any broad question of application generally, but they do raise a matter of great importance of exquisite, painful importance to my client. 

Your Honours, I showed you passages where, as Justice McLure recorded, Justice Templeman had carefully made several findings incorporating, as I say, reliability findings all favourable to Halpern Glick and they were overturned.  We say, in short, her Honour went too far, but those steps too far were in accordance with well‑established rules.

Your Honours, in the event that Mr Walker gains special leave on behalf of the architects, we would urge your Honours to grant special leave in our case on the basis that the essential factual issues there will all be on the table and will be reviewed by necessity.  Your Honours, that is all I say in favour of the further application.

GUMMOW J:   Thank you.  We do not need to hear from any opponents in P46.  We will take a short adjournment.

AT 10.52 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.54 AM:

GUMMOW J:   In each of the applications P46 and P48, an appeal would turn primarily upon factual issues.  We are not satisfied that there are sufficient prospects of success in displacing the assessment of the facts by the Court of Appeal to warrant grants of special leave.  In each application special leave is refused with costs.

Is there anything else, gentlemen?  I think that disposes of all five.

MR GLEESON:   Could I ask your Honours to note that the costs orders are made as per the decisions the Court has given in the sense that the orders your Honour has just made in 46 also affect the City of Fremantle, but that was dealt with earlier in the argument.

GUMMOW J:   I think so, yes.

MR GLEESON:   If your Honour pleases.

GUMMOW J:   We will adjourn to reconstitute.

AT 10.55 AM THE MATTERS WERE CONCLUDED