Harden Shire Council v John Curtis on behalf of himself and Jasmine Patterson, Jacob Patterson, Angus Curtis and Emily Curtis; Harden Shire Council v Curtis

[2015] HCATrans 14

[2015] HCATrans 014

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S263 of 2014

B e t w e e n -

HARDEN SHIRE COUNCIL

Applicant

and

JOHN CURTIS ON BEHALF OF HIMSELF AND JASMINE PATTERSON, JACOB PATTERSON, ANGUS CURTIS AND EMILY CURTIS

Respondent

Office of the Registry
  Sydney  No S264 of 2014

B e t w e e n -

HARDEN SHIRE COUNCIL

Applicant

and

JOHN CURTIS

Respondent

Applications for special leave to appeal

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 FEBRUARY 2015, AT 10.34 AM

Copyright in the High Court of Australia

____________________

MR R.S. SHELDON, SC:   May it please the Court, I appear with my learned friend, MR N.E. CHEN, for the applicants in both matters.  (instructed by Mills Oakley Lawyers)

MR H.J. MARSHALL, SC:   May it please the Court, I appear with my learned friend, MR R.J. TAYLOR, for the respondents.  (instructed by McCabe Partners Lawyers)

FRENCH CJ:   Yes, Mr Sheldon.

MR SHELDON:   Your Honours, there are two aspects to the decision below which we submit warrant this Court’s attention.  The first concerns the approach to section 43A of the Civil Liability Act both as to its construction and as to whether the facts of this case satisfy the tests.  The second aspect which we submit this Court would grant special leave in relation to is causation.  The section 43A construction issue is perhaps best understood, in our submission, by reference, firstly, to the primary judge’s articulation of the test that her Honour sought to apply which can be found most conveniently, in our respectful submission, at combined book 25 at about line 32 where her Honour says that by operation of this provision, there will be no:

civil liability unless I am satisfied that the failure to erect a “Slippery Road” sign and a speed reduction or speed limitation sign was so unreasonable that no authority having that special statutory power could properly consider that omission to be a reasonable exercise of the power.

FRENCH CJ:   Now, is your essential complaint that - putting aside questions of minor inconsistencies - Justice Basten effectively dropped out the “so unreasonable” in his formulation?

MR SHELDON:   In our submission, all three justices below effectively dropped that out, your Honour.  The way in which your Honours will see that is if I could go to the President’s decision at ‑ ‑ ‑

BELL J:   Page 152, paragraph 224.

MR SHELDON:   Yes, your Honour.  Now, the problem which this paragraph creates, in our respectful submission, is that with respect to the President, her Honour agrees firstly with Justice Basten in paragraphs 277 to 279 and we, with respect, make the complaint about what his Honour there says that the Chief Justice identifies.  Then, your Honours will see in the last line of that paragraph:

I consider that her Honour applied the correct test.

Now, in our submission – I am sorry, your Honour.

BELL J:   That is a statement by the President that she considered Justice Fullerton was right to apply a Wednesbury test.  Now, Justice Basten in his analysis, by reference to the text of the provision pointed out amongst its unusual features is that one is applying the standard stated by reference to the position of an hypothesised authority.  Now, the President adopted that aspect of the analysis which, if you like, is an addition to the bald statement of the test by Justice Fullerton, but is it putting a bit high to suggest that there is inconsistency?

MR SHELDON:   Well, we say not, your Honour, because of what appears in paragraph 278 of Justice Basten’s decision from line 60 on page 170 of the combined book where - this being one of the paragraphs with which her Honour agreed - and his Honour puts the two tests side by side, as it were, and says it is not required to consider whether:

it considers the act (to paraphrase) grossly unreasonable –

and we obviously for the purposes of this submission emphasise the words “grossly unreasonable” -

but rather whether no authority properly considering the matter could consider it to be reasonable.

FRENCH CJ:   Well, is he not there just focusing on - rather than saying an exhaustive construction of the provision and rather than overlooking the unreasonableness criterion – focusing on the proposition that it is not a substituted judgment by the court second‑guessing the decision of a particular public authority.  It is a higher threshold than that reflected in the words:

whether no authority properly considering the matter could consider it to be reasonable.

MR SHELDON:   What we say about that, your Honour, is that the proper construction of the section involves this concept of its being so unreasonable which Justice Giles in Allianz and Lukacevic used a number of synonyms to describe and perhaps the easiest to grasp is quite overwhelming, something quite overwhelming.  So when his Honour uses the mere “reasonable” our submission is that his Honour is not giving voice to the earlier decision of the Court of Appeal.

BELL J:   Be that as it may, one does not find in the text the expression “so overwhelming”.

MR SHELDON:   I will accept that, your Honour, but ‑ ‑ ‑

BELL J:   When one looks at what Justice Basten says at paragraph 278, his Honour is directing attention to the question of whether no authority properly considering the matter could consider it to be reasonable.  I suppose another way of viewing that is a conduct or be it an act or omission, carried out by an authority that no authority considering the matter could find to be reasonable, might be said to be “so unreasonable”. 

MR SHELDON:   Except, your Honour, if your Honour goes to about line 32 on page 171 your Honour will see the way in which his Honour Justice Basten synthesises the meaning of that expression that I have taken your Honours to and says:

it envisages a range of opinions –

et cetera.  Now, in our submission, what that is really doing is articulating a test for negligence, not a test for gross negligence or not a test for negligence which is so unreasonable in the terms of section 43A.

FRENCH CJ:   Well, let us just look at that for a moment - no public authority properly considering the issue could place the relevant failure within the range of what is reasonable.  No public authority could regard it as reasonable.  That is what it says.  What do the words “so unreasonable that” add in substance?

MR SHELDON:   Our submission is they add the things that Justice Giles in those two cases of Allianz and Lukacevic suggested they added which was the “quite overwhelming”, the “no plausible basis” type of argument, your Honour.  So, the “so unreasonable” is there to emphasise the degree of departure that is required before one gets into satisfying the requirements of section 43A so that ‑ ‑ ‑

BELL J:   It is so unreasonable because no reasonable authority could so act.

MR SHELDON:   But that is not, with respect, what his Honour said and that is our point, your Honour. 

FRENCH CJ:   I just cannot avoid the feeling that we are making some very fine distinctions here which actually have no practical significance in when a court comes to make a judgment about a question of applying 43A.

MR SHELDON:   In our submission, they do have a practical difference, your Honour, because one is looking at two different things being a departure which is quite overwhelming as against a departure which is just unreasonable.

FRENCH CJ:   It is not just unreasonable.  It is no public authority could regard it as reasonable.  That is a different thing, is it not, from just “unreasonable”? 

MR SHELDON:   Our submission is it is not, your Honour. 

FRENCH CJ:   Okay.  I understand your proposition. 

MR SHELDON:   The second aspect of – I should say before I leave that initial proposition that your Honours will have appreciated from our written submissions that Justice Giles’ approach, the “quite overwhelming” approach has been followed in the Western Australian Court of Appeal and in somewhat more – or somewhat less clearly in the Australian Capital Territory Court of Appeal so that we say that this construction raises a difference of opinion between courts and, indeed, within the New South Wales Court of Appeal.

BELL J:   Your complaint is that in this instance the New South Wales Court of Appeal did not embrace a colourful expression not found in the statutory text. 

MR SHELDON:   Obviously I would not adopt that completely, your Honour.

BELL J:   I thought not.

MR SHELDON:   That might reflect the substance of it.  The second thing about the approach to section 43A is that in searching for satisfaction of the test, whatever it may have been, their Honours were in error, in our respectful submission, because they misunderstood the evidence as to what was meant when the primary judge observed that the decision to erect these signs was a decision as to which minds might differ. 

Your Honours will find her Honour Justice Fullerton’s articulation of the proposition at the bottom of page 29 of the application book and, for purposes which will become apparent shortly, the critical aspect of this in one sense is that her Honour Justice Fullerton identified firstly this problem with the erection of the sign and the reduction of the speed and then said:

the fact that minds might differ as to the need for that additional signage and –

We say the word “and” is important -

that the Manual allows for the exercise of a considered judgment –

et cetera.  Now, we say that from that when the primary judge said that this was a matter about which minds might differ she was not confining herself, as Justice Basten seemed to think, to the discretion which the manual reposed in the person devising the traffic control plan.  She was also dealing with what, in our submission, was the concession from Mr Coffey which meant that minds could differ. 

Now, the court in that regard, in our respectful submission, misunderstood what Mr Coffey was saying on this issue of whether minds could differ.  Your Honours will find in the primary judgment the critical evidence from Mr Coffey at application book 14 and it starts from about line 5.  The question is asked:

If the fact is that even with aggregate on the road, following a resealing operation and before sweeping, the corner could be negotiated safely at a speed of 145km an hour, there would be no need for a reduced speed sign?

Mr Coffey said:

Two parts; I disagree that that could occur, that the corner could be negotiated at that speed with loose aggregate on it.  But if it can, as you have assumed for whatever reason a reduced speed sign would not be necessary –

Then her Honour, your Honours will see in the next paragraph, records the fact that the two experts, Mr Stuart‑Smith for the applicant and Mr Johnston for the respondent, had in their joint report generally agreed - this is at line 22:

that assuming no braking and assuming idealised steering inputs, a driver following the curve to the right on approach to the commencement of the roadworks could, theoretically, safely negotiate the curve at 145 km/h even where loose gravel was present on the road surface.

Now, we say that is critical for a number of reasons.  The Chief Justice did not appreciate that this evidence applied in the presence of loose gravel.  Secondly, neither Justice Basten nor the President, Justice Beazley, understood that there was a dichotomy, as it were, in Mr Coffey’s evidence to the effect that well, if the speed was 145 kilometres then the sign was not needed.  That was the critical reason.

BELL J:   But Mr Coffey did not accept the assumption there, did he?

MR SHELDON:   No.

BELL J:   Mr Coffey’s evidence, for example, there is a ‑ ‑ ‑

MR SHELDON:   He does not accept it, your Honour, I can concede that.

BELL J:   Yes.  He not only does not accept it, but Mr Coffey’s unchallenged evidence in parts was strong.  If one looks at application book 13, in the exchange recorded there he is asked, from his perspective as the supervisor, could he see any explanation for the non‑use of the signs, and he says “it makes no sense to me at all”.  Now, in a sense, Mr Sheldon, accepting that Justice Fullerton may have been meaning more when she spoke of reasonable minds differing, than a reference to the manual, and that her Honour may have been considering the evidence of the traffic engineers, the Court of Appeal upon the review took a view respecting the significance of the uncontradicted evidence of Mr Coffey.

MR SHELDON:   Which was not reasoned towards by Mr Coffey; it was asserted that he did not accept that assumption.  No attempt made to explain why he did not accept it, and no evidence from Mr Coffey as to what he thought the slide‑off speed actually was.  So the two gentlemen who had undertaken the preparation of a joint report, bound as they were by the expert’s code of conduct, had come to an agreement, as it were, about the safe speed at which the curve could be negotiated in the presence of loose gravel.  Now, her Honour preferred that reasoned considered agreement ‑ ‑ ‑

BELL J:   On one view of her Honour’s reasons that may be so, but upon a rehearing on this issue the Court of Appeal was united in the conclusion based on, as I understand it, the unchallenged evidence of Mr Coffey that, in essence, it made no sense to him that the signs had not been used.

MR SHELDON:   Yes, your Honour, but the challenge to the fact that it made no sense is contained within the proposition ‑ accepting that he does not adopt for 145 kilometres an hour, it is contained within the proposition that if that is the slide‑off speed, which her Honour found it was, then the sign was unnecessary.  So that is where the Court of Appeal failed to grapple, in our respectful submission, with the basis upon which minds could differ.

BELL J:   You seek special leave for this Court to grapple with that factual issue?

MR SHELDON:   Well, we do, your Honour, because we say that the rehearing in the Court of Appeal miscarried because their Honours did not firstly see Mr Stuart‑Smith and Mr Johnston give evidence, they did not see Mr Coffey give evidence, and their Honours have not understood how it was that this “differing of minds” proposition emerged from the evidence and persuaded the primary judge to the view that there was scope for different views on this issue.

Now, in relation to causation we say that the question of public importance in this case arises from the fact that the President based her decision very much on this Court’s decision in Betts v Whittingslowe and the Chief Justice specifically disavowed the applicability of the principles emerging from that case, and so we say there was a difference of opinion between the two critical judges for this issue in the court below as to whether Betts v Whittingslowe is relevant to determination of causation.

Your Honours, the Chief Justice deals with this point at 78 of the application book when his Honour says that causation effectively “cannot be inferred from the nature of the breach”.  Now, the President, in our respectful submission, took precisely the opposite approach.  So that what the outcome in the Court of Appeal was was that the Chief Justice took the view that the primary judge had applied the correct test and got the wrong answer, the President took the view that the primary judge had applied the wrong test and got the wrong answer, and Justice Basten took the view that the primary judge had applied the right test and got the right answer.

So that, in our submission, that is a classic exemplar of a case in which there is a difference of opinion which is critical to the disposition of

the case as between the Chief Justice and the President concerning the approach to be taken to causation.

BELL J:   Mr Sheldon, if I can just take you to the Chief Justice at application book 93, paragraph 52.  To succeed in this Court it would be necessary to persuade the Court that the analysis found in that part of the Chief Justice’s reasons is flawed.

MR SHELDON:   Yes, your Honour.

BELL J:   It is a perfectly conventional approach.

MR SHELDON:   Except for one thing, your Honour.  With respect, it closes the categories of things that might have happened so as to cause the problem to those identified in the paragraph when that necessarily carries with it the proposition that experienced competent drivers with a good driving record never have an accident and, in my respectful submission, that is the difficulty with listing a series of things that might have happened and then saying there is no evidence of them.  That necessarily assumes that, absent those things, experienced competent drivers do not have accidents.

BELL J:   It looks to the probabilities of an experienced competent driver having an accident by chance on the first section of the unsealed road with the loose gravel.

MR SHELDON:   And assumes the physical characteristics about which the evidence was, at best, equivocal ‑ that circularity which the Chief Justice and all of the judges talk about. May it please the Court.

FRENCH CJ:   Thank you.  We will not need to trouble you, Mr Marshall.

The test for liability in respect of the exercise of a special statutory power is that set out in section 43A of the statute.  We are not satisfied the Court of Appeal has done other than apply the text of that section.  As to the application of section 43A and also the question of causation we do not consider that the application has sufficient prospects of success, were special leave to be granted, to warrant the grant of special leave.  Special leave will be refused with costs.

The Court will now adjourn to reconstitute.

AT 10.57 AM THE MATTER WAS CONCLUDED