Inghams Enterprises v McDonald & Ors

[2005] HCATrans 551

[2005] HCATrans 551

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S373 of 2004

B e t w e e n -

INGHAMS ENTERPRISES PTY LIMITED

Applicant

and

BARRY EDWARD McDONALD T/AS B.E. McDONALD TRANSPORT

First Respondent

ROBERT BRYCE & CO LIMITED

Second Respondent

SLE INDUSTRIAL SUPPLIES PTY LIMITED

Third Respondent

HUDSON RESOURCES LIMITED

Fourth Respondent

GIRKAID PTY LIMITED

Fifth Respondent

Office of the Registry
  Sydney  No S506 of 2004

B e t w e e n -

ROBERT BRYCE & COMPANY LTD

Applicant

and

GIRKAID PTY LIMITED

First Respondent

INGHAMS ENTERPRISES PTY LTD

Second Respondent

BARRY EDWARD McDONALD T/AS B.E. McDONALD TRANSPORT

Third Respondent

SLE INDUSTRIAL SUPPLIES PTY LIMITED

Fourth Respondent

HUDSON RESOURCES LIMITED

Fifth Respondent

Office of the Registry
  Sydney  No S510 of 2004

B e t w e e n -

BARRY EDWARD McDONALD T/AS B.E. McDONALD TRANSPORT

Applicant

and

HUDSON RESOURCES LIMITED

First Respondent

ROBERT BRYCE & CO LIMITED

Second Respondent

SLE INDUSTRIAL SUPPLIES PTY LIMITED

Third Respondent

GIRKAID PTY LIMITED

Fourth Respondent

INGHAMS ENTERPRISES PTY LIMITED

Fifth Respondent

Office of the Registry
  Sydney  No S511 of 2004

B e t w e e n -

BARRY EDWARD McDONALD T/AS B.E. McDONALD TRANSPORT

Applicant

and

ROBERT BRYCE & CO LIMITED

First Respondent

HUDSON RESOURCES LIMITED

Second Respondent

SLE INDUSTRIAL SUPPLIES PTY LIMITED

Third Respondent

GIRKAID PTY LIMITED

Fourth Respondent

INGHAMS ENTERPRISES PTY LIMITED

Fifth Respondent

Applications for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 5 AUGUST 2005, AT 9.55 AM

Copyright in the High Court of Australia

MR I.D. FAULKNER, SC:   May it please the Court, I appear with my learned friend, MR H.J.A. NEAL, for Inghams Enterprises in application S373 of 2004.  We really are the primary applicant here.  My client is the respondent in the other three applications.  (instructed by Minter Ellison)

GLEESON CJ:   I think a lot of the other applications are defensive, as it were, in case this application succeeds.

MR FAULKNER:   Yes, your Honour.

MR S.G. FINCH, SC:   If the Court pleases, I appear with my learned friend, MR P.S. BRAHAM, for Mr McDonald, who is the first respondent in what we might call the main proceedings, S373 of 2004.  Mr McDonald is the third respondent in proceedings S506 of 2004 and is the applicant in what your Honour correctly describes as the more procedural matters, S510 and S511 of 2004.  (instructed by Hicksons)

MR M.A. ASHHURST:   May it please your Honours, I appear for Bryce in proceedings S373 of 2004.  We in fact have filed a submitting appearance in that application but have our own application in proceeding S506 of 2004 that mirrors the Inghams application and should abide the results of the Inghams application.  (instructed by Michael Samios)

MR P.M. BISCOE, QC:   If the Court pleases, I appear with my learned friend, MR D.R. PRITCHARD, for the respondent, SLE Industrial Supplies Pty Limited on each application.  (instructed by Ebsworth & Ebsworth)

GLEESON CJ:   Just before you begin, Mr Faulkner, there are some certificates here.  In matter S373 of 2004 there is a certificate from the Deputy Registrar that the following respondents submit to the order of the Court save as to costs:  Robert Bryce & Co Ltd, Hudson Resources Limited and Girkaid Pty Limited.  In matter S506 of 2004 there is a certificate from the Deputy Registrar that the following respondents submit to the order of the Court save as to costs:  Girkaid Pty Limited, Inghams Enterprises Pty Limited, SLE Industrial Supplies Pty Limited and Hudson Resources Limited.  In the cases of S510 and S511 of 2004 there is a certificate from the Deputy Registrar that the following respondents submit to the order of the Court save as to costs:  Hudson Resources Limited, Robert Bryce & Co Ltd, SLE Industrial Supplies Pty Limited, Girkaid Pty Limited and Inghams Enterprises Pty Limited.  Yes, Mr Faulkner.

MR FAULKNER:   The application is confined to a single question of law.  In our submission, the question can be formulated simply:  did the Parliament intend to confer a correlative right of action where the breach of dangerous goods regulation 19(g) caused loss.  

GLEESON CJ:   Is it right that the regulatory scheme that you want us to construe has now been repealed?

MR FAULKNER:   It has not been repealed but ‑ ‑ ‑

GLEESON CJ:   The legislation providing for its repeal has been enacted and has not yet come into effect?

MR FAULKNER:   Yes.  I will come back to that in a moment.  In our submission, the Court of Appeal adequately stated the regulation was one for the keeping and handling of dangerous goods in order to reduce the risk of fire and explosion.  In that respect it is an important point pointing to the correlative right of action arising.  We say that the Court of Appeal though fell into error in searching for enumerated specific measures that might be taken or that should exist before the regulation can be construed as giving right to a correlative right of action.

We say that that can be distinguished by the judgment of Justice Sholl in the decision in Victoria, a passage of which is in volume 2 of the joint application book at page 220, where we refer in our outline of argument at paragraph 19 to Mr Justice Sholl’s decision in Kirkpatrick v Lewis Constructions.  After referring to what Sir Owen Dixon had said in O’Connor v Bray, he said:

It is true that his Honour, at CLR p 478, spoke of the effect of such a provision as defining specifically what must be done . . . and I was inclined to think that it might be doubtful whether the provision now under consideration, s 11(3), could be said to prescribe any specific measures, or should not rather be said merely to make a declaration that there ought to be a state of safety and efficiency without indicating any particular means whereby that should be achieved.  But on consideration, I think that the authorities do not warrant the proposition that the conferring of a private right of action depends upon the statutory enumeration of some defined and specific steps.

Our submission is that the Court of Appeal fell into error by searching for enumeration of specific matters.  It should have construed 19(g) as being a specific measure.  That is, for the regulation to say that the occupier of the dangerous goods warehouse must not do any act that may cause fire, whilst that does not enumerate what would be tens, if not hundreds, of circumstances the experience of life would tell us may cause fire, nevertheless we say it was a specific measure.

We do submit that the Court of Appeal erred to the extent that support was found in the Privy Council decision in Utah v Pataky.  Our submission is if that decision has any relevance at all here, it supports our argument in that their Lordships found that the regulation under consideration there was ultra vires because it provided for the end and did not specify the means but nevertheless went on to hold obiter that the regulation nevertheless would create a correlative private right of action, and that is the circumstance that we have here.

We submit a further positive statement in support is what is found in volume 2 of the application book at page 228, where our friend set out in submissions in response what Chief Justice Brennan and Justices Dawson and Toohey said in Byrne v Australian Airlines at line 4 there of that citation:

One generalisation that can be made is that where the persons upon whom the statutory obligation is imposed are under an existing common law duty of care towards the persons whom the statute is intended to benefit or protect, the statutory prescription of a higher or more specific standard of care may, in the absence of any indication of a contrary intention, properly be construed as creating a private right.

We submit here that first of all the respondent, the warehouse occupier, did owe us a duty of care at common law and that what the regulation has done is specify a higher standard of care.  Whilst it is only a generalisation, it is another matter in support of our argument.

GLEESON CJ:   Do you have a comment to make on that passage from Professor Fleming’s work on page 229, paragraph 21?

MR FAULKNER:   We disagree with that and we say a review of the authorities does not permit that conclusion to be stated as it is there, that there are no authorities that we are able to find that specifically support what he has to say.

GLEESON CJ:   I think it was probably more a statement of legal policy than a summary of authorities.

MR FAULKNER:   I assume that your Honour was referring me to the ‑ ‑ ‑

GLEESON CJ:   The one beginning, “there is really no justification for”.

MR FAULKNER:   The only other matter I wanted to make submissions about was this on the special leave factors.  I had given your Honours copies of three regulation provisions from other States.  The Tasmanian

regulation in relation to dangerous goods is in almost identical terms.  We could only discern one distinction there, otherwise it is the same as 19(g) that the occupier must not do anything that causes or is likely to cause or produce fire.  The other two regulations that I forwarded were for Queensland and Victoria and, whilst not as close to the wording of New South Wales and Tasmania, are expressed in the negative and do not enumerate the measures that must be taken.  We put those in only as examples.  They are examples within the dangerous goods legislative scheme but, in our submission, safety regulations of all kinds provide from time to time of conduct that is proscribed and it is stated in the negative and in an unspecific or unenumerated sense in the way that we say.

Finally, we say that if special leave is granted, the appeal book on that appeal would be the same as the material before your Honours today.  The question is so narrow that in fact what is being argued today would be the same extent of argument that would be presented on an appeal.  For those reasons, we say it is an appropriate matter for leave, if it please.

GLEESON CJ:   Thank you, Mr Faulkner.  In the event that we are against Mr Faulkner, none of the other matters arise, is that right?

MR……….:   That is right, your Honour.

GLEESON CJ:   We do not need to hear you, Mr Finch.

The resolution of the issue in the Court of Appeal in this case turned on the application of established principles to the interpretation of a regulatory scheme.  Having regard to the reasoning of the Court of Appeal and to the subsequent legislation providing for the repeal of the regulatory scheme, the case does not appear to us to give rise to an issue suitable to a grant of special leave to appeal.  The application is dismissed with costs.

MR FINCH:   Does your Honour’s order as to costs cover the other applications as well?  We have made submissions that they all do because they are all holding simply there because of this application for special leave.

GLEESON CJ:   What does that actually produce in terms of a practical result, Mr Finch, as to costs?

MR FINCH:   That the applicant in proceedings S373 should pay the costs of each of the applications for special leave, not just that one.

GLEESON CJ:   What do you say about that?

MR FAULKNER:   We would oppose that.  In our submission, we should only be burdened with one lot of costs here.  It is a very small narrow argument that could have been presented against us without the involvement of a number of counsel, in our submission.

MR FINCH:   That does not address our point.  Our point, your Honours, is the others were necessary to hold the other cross-appeals which otherwise would have gone for want of time.

GLEESON CJ:   Does anybody else want to say anything about the question of costs?

The order for costs that has been made covers the costs of the other applications as well.

AT 10.08 AM THE MATTERS WERE CONCLUDED