Haghighat v Local Spiritual Assembly of the Bahais of Parramatta & Anor

[2005] HCATrans 25

[2005] HCATrans 025

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S92 of 2004

B e t w e e n -

BABAK HAGHIGHAT

Applicant

and

LOCAL SPIRITUAL ASSEMBLY OF THE BAHAIS OF PARRAMATTA LIMITED

First Respondent

and

NATIONAL SPIRITUAL ASSEMBLY OF THE BAHAIS OF AUSTRALIA LIMITED

Second Respondent

Application for special leave to appeal

McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 4 FEBRUARY 2005, AT 11.43 AM

Copyright in the High Court of Australia

__________________

MR P.R. HENNESSY, SC:   May it please the Court, I appear with my learned friend, MR M.A. KUMAR, for the applicant.  (instructed by Rishworth Dodd & Co)

MR D.F. ROFE, QC:   If your Honours please, I appear with my learned friend, MR D.M. WILSON, for the respondent.  (instructed by Henry Davis York)

McHUGH J:   Yes, Mr Rofe.  It is good to see you again.  We have not seen you up here for a long while.

MR ROFE:   I either win or lose cases decisively.

MR HENNESSY:   I hope that happens here.  Your Honours, the basis of this application is that, in our submission, the Court of Appeal failed to appreciate the evidence that was accepted by the trial judge when the trial judge found a breach of duty of care and it is our submission that that failure resulted in a miscarriage of justice.

The applicant, your Honours, was awarded before the trial judge some $675,000 and that verdict was overturned by the Court of Appeal.  As described by the trial judge, the absolutely central fact in resolving breach of duty, which was the relevant matter before the Court of Appeal, was the advice of ambulance officers that the applicant was best left in familiar surroundings and that Danielle would stay with him at night and the fact that such advice was conveyed by Danielle to the Fanayans.

However, the Court of Appeal, Mr Justice Mason having delivered the judgment, on this critical matter, in our submission, posed to himself a different question.  His Honour posed this question for himself:  was it unreasonable to disregard Danielle’s views as distinct from the ambulance officers’.  That was a question posed by ‑ ‑ ‑

GUMMOW J:   It does not sound like a special leave case.

MR HENNESSY:   Your Honour, this was determinative of the appeal.

GUMMOW J:   Of course.

MR HENNESSY:   And it resulted in a reversal of the judgment, and, indeed, it is our submission that the only explanation for his Honour posing that question to himself was, in effect, accepting the evidence of the Fanayans as to what the ambulance officers said to her in a setting where the trial judge specifically rejected her evidence in that regard.  So that, in other words, the trial judge accepted Danielle, rejected the Fanayans’ evidence on this matter and the Court of Appeal acted opposite to that.  In our submission, your Honours, that is a most significant matter.  His Honour having posed that question, that question then really, as I say, became determinative of the appeal.  It is our submission that of course no such question arose. 

A couple of other material matters, your Honours, most relevant to the Court of Appeal’s reversal of his Honour’s judgment, was Mr Justice Mason’s observation that the plaintiff/respondent was familiar with the Fanayans and their unit.  In our submission, the trial judge specifically found that that was not the case.  Further, his Honour Mr Justice Mason observed that his Honour Judge Phegan acquitted the appellant of negligence as regards the failure to provide around the clock invigilation.  In our submission, his Honour Judge Phegan found the opposite to that. 

Those apparent reversals of his Honour the trial judge’s findings of fact determined this appeal and, in our submission, they were simply inappropriate reversals of finding of fact.  If I may refer your Honours to some of the evidence in that regard, it was accepted that the ambulance officers said to Danielle Brown, “He’ll be fine in the morning, keep him here at home where he is familiar with the surroundings”.  The trial judge accepted that the ambulance officers asked her to stay with him that night, which she agreed to do.  The trial judge found that such advice was passed on to the Fanayans by Ms Brown and the trial judge rejected the Fanayans’ denials that that occurred.

McHUGH J:   The real problem that you face, given the trial judge’s reasons, is it not, was that the trial judge failed to give any proper consideration to the question of the reasonableness of the conduct of the Fanayans.

MR HENNESSY:   The trial judge, with respect, considered that and took the view that the breach by the Fanayans was in defiance of the ambulance officers’ advice, removing him from where he was and taking him to their home.

McHUGH J:   But the question was whether or not it was unreasonable for them to do what they did.

MR HENNESSY:   The trial judge took the view that in the circumstances, that is to say given the plaintiff’s medical condition and the advice of the ambulance officers, that movement was inappropriate.  The Court of Appeal took the view that what the Fanayans did was doing something that Danielle thought was inappropriate.  That is not the case, your Honour.

McHUGH J:   Yes, but if the real basis of the trial judge’s conclusion is their removal of the applicant or their prior failure to inquire about the advice, there was not at that time any true assumption of responsibility or control over the applicant, was there?

MR HENNESSY:   Yes, your Honour.

McHUGH J:   I mean, he was at that time under the control of Ms Brown and she consented to him going, no matter how unhappily.

MR HENNESSY:   His Honour Mr Justice Mason used the word “acquiesced” at least, but the trial judge found that Danielle, to use the trial judge’s description – he accepted - protested but the Fanayans determined to have their way.  Insofar as that finding by the trial judge is described accurately by the Appeals Court as being acquiesced, so be it.  But, your Honours, it should not take away from the trial judge’s finding that this younger woman, as was referred to, Danielle, was instructed, as his Honour the trial judge found, to pack the boy’s bag and she followed that instruction under protest.

Your Honours, those matters, with respect, may go more to duty but insofar as they go to breach they are as I have described.  We see no reason to move, with respect, from the trial judge’s view that the critical matter was the ambulance officers’ advice.

McHUGH J:   Yes, but there are real problems about using that in the context of this case to establish negligence.  The ambulance officers’ advice was given in the context of the alternative of removing the applicant to hospital, not to removing him to another home.

MR HENNESSY:   Well, your Honour ‑ ‑ ‑

McHUGH J:   That is so, is it not?  That was the context?

MR HENNESSY:   Presumably, if he was going to be removed to hospital he would be removed to hospital where the surroundings may not be familiar but, nevertheless, he would be under supervision and, indeed ‑ ‑ ‑

McHUGH J:   Was it not implicit in the ambulance officers’ advice that as long as the applicant was attended by a responsible adult he need not be removed to hospital?

MR HENNESSY:   In familiar surroundings, your Honour.

McHUGH J:   Yes.  Once you accept that, where is the negligence?

MR HENNESSY:   By in fact taking him to unfamiliar surroundings.

McHUGH J:   But where was the unsuitable surroundings?

MR HENNESSY:   Unfamiliar, unsuitable, being a unit some floors up.  The trial judge declined to accept the Fanayans’ evidence that the plaintiff was rather familiar with that place.  The trial judge specifically rejected that and yet his Honour Mr Justice Mason observed that they were not unfamiliar surroundings.

McHUGH J:   Mr Hennessy, as Justice Gummow pointed out to you, this is just a fact case.  It is not a case that we would grant leave.

MR HENNESSY:   It is a fact case.  On the other hand, there was reversal, in our submission, of fundamental facts that determined this man’s substantial entitlement.  Having said that, that is our case.  Yes, thank you, your Honour.

McHUGH J:   Thank you.  We need not hear you, Mr Rofe.

This case turns on its own facts.  There is nothing about the case that would warrant a grant of special leave to appeal.  Accordingly, the application is dismissed with costs.

AT 11.54 AM THE MATTER WAS CONCLUDED