Marsh & Anor v Baxter

[2016] HCATrans 22

[2016] HCATrans 022

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P44 of 2015

B e t w e e n -

STEPHEN WILLIAM MARSH

Applicant

SUSAN GENEVIEVE MARSH

Applicant

and

MICHAEL OWEN BAXTER

Respondent

Application for special leave to appeal

FRENCH CJ
KIEFEL J
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 12 FEBRUARY 2016, AT 1.00 PM

Copyright in the High Court of Australia

MR B.W. WALKER, QC:   May it please the Court, I appear with my learned friends, MS C.M. PIERCE and MS L.M. NICHOLS, for the applicants.  (instructed by Slater & Gordon)

MS P.E. CAHILL, SC:   May it please the Court, I appear with my learned friend, MS F. VERNON, for the respondent.  (instructed by Bradley Bayly Legal)

FRENCH CJ:   Yes, Mr Walker.

MR WALKER:   As your Honours have seen, we seek to contend in this Court, were we granted special leave, that the learned President got it all right.  I come to that immediately because you will have seen from the way we express it in writing that we see special and general significance in one, but not all, of the issues necessary for overall success, final success of our case.

The foreseeability question, critical to the question of duty upon which we lost and on which the President would have held for us, is the point that dominates what I will call the general importance aspect of special leave.  It is in the interests of justice in the particular case that carry with it the other grounds in the proposed notice of appeal which may be summarised as concerning related aspects of nuisance, that is, related to the foreseeability question with nuisance, but particularly the matters of breach and causation.

May I come to those immediately?  In relation to all of them, the differences between the President who was the only member of the Court of Appeal to deal with all of those issues, the difference between the President and the majority can be seen as proceeding upon a view of what I am going to call “reasonableness”, albeit in the different aspects where reasonableness is deployed in relation to breach – reasonable response – in relation to duty – reasonably foreseeable – in relation to causation – that there is not beyond the bounds of what is reasonable a breaking of the chain of causation of that which someone may reasonably be held liable for at law.

KIEFEL J:   In relation to the question of duty of care, the members of the majority in the Court of Appeal did not address that question.  They proceeded upon an assumption that it existed, I think.

MR WALKER:   Your Honour, it may be – sorry, certainly explicitly, what your Honour just describes as a method of approach is what they did.  However, the substance of what can be seen in the evocatively numbered 666 in their reasons, application book 300, really causes serious doubt as to whether the assumption was full‑bloodedly made or, in any event, whether it was a proper approach to the judging of this contention.

KIEFEL J:   But, in any event, do you say that reasonable foresight is sufficient for duty of care?

MR WALKER:   There needs to be more than reasonable foresight but we failed ‑ ‑ ‑

KIEFEL J:   That does not seem to have been – unless I am mistaken, the question of what law does not seem to have been gone into anywhere in the Court of Appeal.  I do not think the President ‑ ‑ ‑

MR WALKER:   I think it is fair to say that the battleground did concern ‑ ‑ ‑

KIEFEL J:   Foresight.

MR WALKER:   ‑ ‑ ‑ the nature of such foresight as was available.

KIEFEL J:   But there are other larger questions looming here in relation to duty, are there not?

MR WALKER:   Always with duty there is more than foresight.

KIEFEL J:   The reason I raise it is not so much that the proposed appeal here focuses upon it but, indeed, for the very reason that it does not, that because there is so much involved in that question unexplored here that this may not be an appropriate vehicle.

MR WALKER:   May I try and address that, probably alongside the point I started with, which is to recognise that there is breach and causation as well.  In relation to breach and causation, as I say, they all partake of a matter of reasonableness and, in our submission, it is plain from the way the majority dealt with what I am going to call the issue of reasonableness for the foresight component in the duty inquiry that, were we to be granted special leave and to succeed on that issue, it would have inevitable knock‑on effects in relation to breach, reasonableness of response, reasonable user in relation to nuisance and certainly the reasonableness of holding responsible in the chain of causation which has been incontestably made out, that is, the challenge to causation, if there be one, would be one that it is not reasonable, for example, for the decertification to have occurred.

Now, they are not all the same issue of reasonableness but they all are concerning exactly the same quasi‑regulatory milieu in which this organic certification operated.  I call it quasi‑regulatory because it is not as simple as a fully legislated scheme but, for the reasons that your Honours have seen are in common of the majority and the President, there is an explicit linking of what is called the contractual system by way of quarantine and other export regulations in such a way that this is, on any view of it, more than a simple private contractual or club‑like scheme.

Now, in our submission, when one looks at 666, for the issue that dominated the contest between the parties in relation to duty, it can be seen their Honours there are dealing with the 2010 notice but the same can be said about the earlier 28 so‑called “volunteer” germination.  What can be seen about 666 is that there is a requirement posed, found by the majority that goes beyond notice ‑ ‑ ‑

FRENCH CJ:   Just before you go on, Mr Walker, I think there is a bit of noise coming through the microphone – it may be pages turning at the other end – so if solicitors and counsel at the other end could be careful to keep the pages away from the microphones.  It seems to be a very sensitive pickup.

MR WALKER:   I am very obliged to your Honour.  It was either that or the tide coming up the beach.  Thank you.  In 66 you have got the notice on the one hand and on the other hand there is a requirement for what is called actual knowledge that the appellants were objectively at risk of decertification if there was the cropping in the fashion mentioned.

Now, in our submission, this is to erect a false dichotomy that is really not to be found in the law and it is certainly in an unintended way to intrude an element into the duty inquiry which perversely would record what I will call incuriosity or ignorance on the part of the defendant.

GORDON J:   Just so I am clear, Mr Walker, what is the risk that you say was sufficiently foreseeable?

MR WALKER:   The risk was that if he cropped in that fashion and there was, what I am going to call “contamination” ‑ I realise there is an issue about that ‑ but if there was contamination by material moving from his land to our land then our certification upon which our economic fortunes depended would be in peril, we may lose certification.  That was the risk and he was put on very plain notice of that twice.  It was correct.  The word “risk” is very important.  It does not mean certainty of a consequence; it means a real, not remote, possibility of that consequence.  The consequence did, in fact, occur and the majority did not reason by saying it could not have occurred as a matter of contract law, whatever that would actually mean in this inquiry.

The contract, so‑called, is an adventitious legal characteristic of the relation in which our business interests could be affected so as to be recoverable economic loss if in breach of a duty of care the defendant did or failed to do something relevant, adventitious in the sense that it does not have to be a contract for business outcomes to be affected within recoverable economic loss.  Mostly, of course, it will be a loss of custom which means contracts not made.  Often it may be, as one for example contemplates in Perre v Apand, the operation of truly statutory schemes of regulation that means that one cannot make as much money out of your crop as you might otherwise have done.

GORDON J:   Is not one of your problems, though, that it is not just the risk that this person cropped leading to contamination, it is an increased risk.  I mean, there is always going to be a risk if someone crops that you end up having a rabbit cross the fence unless you have a rabbit‑proof fence to stop rabbits, but is that not really your problem?

MR WALKER:   No, it is not a problem; it is something that may in terms of what I call a jury consideration of the particular facts.  That is, at the level of where one is a jury, just finding the facts in terms of reasonableness and reasonable response, there would always be a question with what I will call “addition to risk” is to whether the increment in question is such that it is reasonable to do anything about it.  Now, that is a matter which is peculiar to the facts and nobody has suggested in this case that the increment to risk over and above that which rabbits might do was so slight that you need do no more about the swathing technique than you could do about rabbits.

KIEFEL J:   That is part of the more general question concerning duty that goes beyond foresight of risk about what a person in the position of the defendant could reasonably be required to do, having regard to their circumstances and their interests.  That is what I was saying to you before about the wider considerations here that really do not seem to have been explored. 

MR WALKER:   Well, with respect, it is clear that in relation to duty that is the inquiry in which foreseeability is an important but not an exhaustive consideration.  It is clear that the parties did not see that as a battleground in discrete terms.  On the other hand, exactly those topics were covered and thoroughly in relation to nuisance, in particular, what might be called the give and take involved in the fact that the defendant has interests, including interests of a kind of autonomy in relation to the use of his land or his conduct.  I accept all of that but our submission is that that has been sufficiently the subject of findings of fact that it does not deprive this case of the character of being a suitable vehicle to test the very ‑ ‑ ‑

KIEFEL J:   But you are not suggesting that the findings in relation to nuisance are transported to deal with the question in negligence.

MR WALKER:   Nothing is so neat.  They are, obviously, different modes of determining whether there is liability in tort.  On the other hand, there is an overt common element between negligence in relation to the use of activities conducted on land to the detriment of activities conducted on neighbouring land between negligence and nuisance.

KIEFEL J:   While I have you interrupted and you have referred to nuisance, could you remind me what the relief sought in relation to nuisance was?  Was it a perpetual injunction?

MR WALKER:   Yes.

KIEFEL J:   Difficult?

MR WALKER:   Ambitious.  Yes.  There is something about the word “perpetual” that I think signals that, if nothing else.

KIEFEL J:   Yes, quite.

MR WALKER:   But, obviously, there is the common law relief in damages for past conduct as well, which is at the heart of the matter.  Your Honours, in 666, in our submission, in what might be called a “culminating juncture” in the reasoning against us, there is a looking back to earlier conclusions and observations and I want to go to one which is expressed by reference to the 2010 warning letter.  At the foot of page 299, in paragraph 662, over to the top of page 300, the same page, one sees a repetition by the majority in those first four lines of one of their own introductory paragraphs ‑ that is paragraph 385.  It is a critical point for their Honours, namely, that the genetically modified:

canola swathes were harmless to people –

that means in biological terms ‑

animals and property, and that the swathes posed no risk of genetic transfer to any species of crop or produce on the appellants’ land.

I stress, it is the President who engaged in the painstaking and, with respect, plainly correct analysis of the unacceptable risk of contamination in the sense that contamination ought reasonably be understood in the regime for certification as amounting to a thorough going justification for the decertification in this case.

The observation in 662 is uttered as if the common law court, faced with the dealings between these parties, the prior dealings – call them warnings or notices that go to foreseeability, foresight – and dealing with questions of causation thereafter, is inserting the judicial judgment that certification was, as it were, an excessive overreaction; reasonableness coming in, in our submission, by way of second guessing the whole regime by which certain agricultural produce is certified to have a provenance that, as all their Honours find, has a demonstrable, actual, market appeal.

That is the mechanism by which economic loss is caused, and it is not to the point that there may be some people who say this smacks more of religion than of science.  That is irrelevant.  Whatever the cogency of a concern in terms of contamination of one species by a wholly alien other species, the fact is that there is an observable market effect from a certification system that is, as it were, one that errs on the side of abundant caution and deals with the notion of contamination without any moral judgment against those who suffer it and says that, in order for this certification to be robust and assuring for the purposes of wide marketing internationally as well as domestically, there are safeguards which mean that, as the President construed it, this decertification was something that could follow.

Those possibilities do not depend upon and cannot be contradicted by judicial disapproval of or departure from the regime which is proved as a matter of commercial and social fact to exist, certification so as to give special cachet in a market.

GORDON J:   I have assumed that at 659, Justices Newnes and Murphy correctly identify the way in which your client put its case below, and that is on appeal, that is:

that the judge ought to have found that Mr Baxter ‘had actual knowledge and foresight of the risk that’ the appellants’ ‘organic certification might be affected or lost if GM material got onto Eagle Rest’.

That seems to be different from the way in which you are now putting it.

MR WALKER:   No, not at all.  He did have actual knowledge and foresight in the sense of the risk, and the risk is the possibility because he had been told so.  So, at 666, their Honours seem to be treating the notion of actual knowledge as if it turned on whether he himself had a view for himself as to whether decertification would be a proper or justified course, but he had been told there is a risk of this and it is, in our submission, never for a defendant in such a situation to say “well, you say so, I know you say so, and I know you assert a possibility, I do not know whether that is true or not”.  One can imagine applying that kind of reasoning, for example, in an area of professional negligence, you would have an outright premium being placed upon either incuriosity or ignorance, which is ridiculous, and it belies the objective nature of the inquiry.

FRENCH CJ:   Well, that is what I just wanted to ask you.  Your complaint in terms of principle is directed to what you see is an emphasis on subjective ‑ ‑ ‑

MR WALKER:   Acceptance.

FRENCH CJ:   ‑ ‑ ‑ acquiescence I think is the term you use in paragraph 21, in the risk.

MR WALKER:   That is right.

FRENCH CJ:   And you say that sets too high a threshold.

MR WALKER:   Yes, and that it is fundamentally at odds with the historical and, but for this case, contemporary seating of that part of the inquiry in an objective inquiry.

FRENCH CJ:   And you locate that, what, in the words “actual knowledge” in 666, it goes beyond that?

MR WALKER:   In 666, as opposed to their somewhat difference use in the way we have put the argument, recited in part in 659.  There is actual knowledge in the man who receives the letter saying “he is a risk”, he has actual knowledge of that risk by way of the assertion as to its existence.  There was, of course, in this case, no false issue about any incredible quality of the letter, so neither Mr Baxter nor the court in the judgments against us find that there is, as it were, an inherently fantastic nature to the letter, not surprisingly because, as we know, it came to pass.

Now, what came to pass, we are criticised for referring to, because it is said to be impermissible use of hindsight; far from it.  Proving that something comes to pass in all sorts of areas of life that come before a court in a negligence case shows that it was possible.  So that it was later manifest shows that it was at an earlier time, the time when prospective consideration is important, that it was a possibility.  We do not have any unknown state of art questions here, no anachronisms involved because, as we warned in our notice, these are possibilities that we asserted existed and we were correct ‑

FRENCH CJ:   Mr Walker, your time is up, I see.  Is there anything brief that you want to say on the nuisance question?

MR WALKER:   That there is a clearly cognate aspect of the reasonable use of land, particularly in the response called for.  This was a man who had direct headed before, had always direct headed and, in our submission, the notion that simply because most people do not does not mean that when your neighbour has a reasonable user of land for organic certification that it could possibly be regarded as unreasonable to go back to what you had always done before.  May it please the Court.

FRENCH CJ:   Thank you, Mr Walker.  Yes, Ms Cahill.

MS CAHILL:   May it please the Court.  In our submission, there are at least three reasons why special leave should not be granted.  The first is that the special leave question itself, as posed by the applicants, does not have sufficient prospects of success because it depends upon a misreading of the majority’s reasoning on reasonable foreseeability, especially at 665 and 666.  We say that those paragraphs do not depart from an objective analysis in the way in which my learned friend contends.

Secondly, in any event, this is a pure economic loss case and reasonable foreseeability is but part of the jigsaw in deciding whether or not a duty of care was owed by my client.  Your Honour Justice Kiefel has identified an issue about the subordination of the additional factors of salient features in the reasoning in the Court of Appeal by reason of the way, we say, the applicants chose to frame their case at trial and on appeal, which potentially render it an unsuitable vehicle for special leave.

We make the further point that any appeal, were it to go from here in this Court, would involve very complex questions of fact.  A flavour of that can be obtained from paragraph 210 of the President’s decision at application book 203.  Your Honours will see there that what is being considered by her Honour there is the issue of the reasonableness of the decertification of paddocks 7 to 13 of Eagle Rest.

Her Honour made something in the order of 24 factual findings in the course of her judgment; here there are 11 on which her conclusions about the reasonableness of decertification depend.  Of those 11 there are seven that the majority were unprepared to make because the majority considered those propositions of fact to be too widely stated.  That is but an indication of the factual inquiry task that would confront this Court, were the appeal to issue.

The third point is that of those many factual findings that would need to be reconsidered and explored at least two that we have identified, one I think we have identified specifically in our written submissions, were key to the President’s conclusions on breach and nuisance and underpinned the findings in negligence and nuisance.  We say that those findings simply cannot be sustained when the evidence is considered.

Your Honours, can I return to the special leave question.  The focus on paragraph 666 that my learned friend had in his submissions indicating the dominance of this issue about foresight, actual foresight in the courts below, arose because of the way in which the applicant’s case at trial was run and that was to establish reasonable foreseeability of the risk of decertification by fixing the respondent with actual foresight and knowledge of that risk.  That approach was presumably warranted for the sorts of reasons identified by the majority at 646 to 650 of their reasons for decision.

The essential factual question was, relevantly, whether the 2008 and 2010 notices were objectively sufficient to fix the respondent with that actual knowledge.  The reasoning of the majority did not, as the applicants contend, ignore or subordinate a consideration of the objective sufficiency of either notice, nor did the majority require that the respondent subjectively accept and believe, or in the case of the 2008 notice continue to believe, the contents of either notice before there could be a finding of actual knowledge.  Rather, what the majority did was to consider the sufficiency of each notice to fix the respondent with knowledge and found in each case and in different respects the notice to be wanting to achieve that. 

The reasoning at 668 at page 301 with respect to the 2008 notice was essentially that the notice was given in a point at time that was no longer relevant to a person in the position of the respondent as a reliable indicator of the then present risk.  Amongst other things, the production of GM canola was no longer prohibited, and as the majority found by that time, 2010, the focus of the agricultural industry was on the risk of genetic contamination.

As my learned friend has identified, the majority dealt with the 2010 notice between paragraphs 660 and 665.  Relevantly, the Court referred to the lack of clarity as to what was meant in the notice by contamination ‑ that is at paragraph 661 ‑ and to the fact that it contained overstatements and inaccuracies ‑ that was the focus of 662, not referable back to 661 which dealt with contamination.  Now, importantly, at 665 over the page, the reference to the fact that:

a reasonable person . . . would not have known –

and I emphasise the word “known” there ‑

of the provenance, authority or proper construction –

of standard 3.2 that was attached to the notice is evidently a reference to the absence of knowledge that the respondent or a person like him would have had independently of the notice.  That was very important here.  Why?  Because the notice itself did not convey any of those things. 

In particular, it said nothing about the proper construction of standard 3.2.9 which, having considered that standard at length, the majority concluded was a very vexed or complicated question.  Thus, the majority concluded at 666 that the 2010 notice was not sufficient to support a finding of knowledge of the risk of decertification on the part of the respondent.

Now, in that context, the majority’s approach to the issue of knowledge and the treatment of the notices was both correct and orthodox.  A potential defendant cannot be fixed with knowledge simply by giving notice without regard to the circumstances in which the notice is given or the contents of the notice, including in particular as to its accuracy and clarity.

FRENCH CJ:   Does the reference to “actual knowledge” go further than they had to go?

MS CAHILL:   The reference to actual knowledge ‑ ‑ ‑

FRENCH CJ:   In 666.

MS CAHILL:   Yes.  I do not think so, your Honour, because all it involves is a reference back to the way in which the case was put by the applicants.  What they were trying to do was fix the respondent with actual notice via the notice.

GORDON J:   Is that what 659 is directed to?  Is that what 659 records accurately?

MS CAHILL:   Yes, your Honour.  Now, at 241, I was just going to take the Court to page 241 of the application book where conveniently set out at 410 is the relevant contents of the notice, and when the court talked about the lack of clarification around what was meant by contamination, your Honours will see on page 241 and over at 242 there is at no point any explanation or explication of the meaning of the word.

Indeed, if one looks at paragraph 1 of the notice at page 241, in the fifth line there is the reference to ‑ in the second line “the potential to cause catastrophic commercial losses” et cetera; second last line, “if GMOs enter upon and contaminate a non‑GM farm”.  Now, that is rather important, given what happened here, where the complaint is that by the mere entry of the GM canola onto the farm that in itself was sufficient to constitute contamination. 

Here the word “contamination” seems to have been deployed in contradistinction to the mere entry of the material upon the land.  So this is just grist for the mill, we say, in terms of supporting that conclusion that the majority reached, that it was relevant to take account of the lack of clarity in the notice when deciding whether or not it was sufficient to fix the respondent with actual knowledge of the risk.  Bear in mind too, your Honours, that the focus of the case was upon the swathing method.  This was the case that was ultimately put against Mr Baxter at trial and the way in which ultimately the issues of duty and nuisance were framed.

Over at paragraph 5 of the notice on page 242, your Honours will see the way in which the notice seeks to engage most generically with all aspects of the cropping activity without differentiation between those things that may be acceptable and those that may not.  Ultimately, the applicant’s position became, in the course of the trial, that they had no complaint about the actual growing of the GM canola, it was all in the method of swathing that occurred at harvest time.

We ask, rhetorically, how could a notice with these sorts of deficiencies, in and of itself, fit a respondent with actual knowledge and foresight of the risk, so therefore something more needed to be found.  Those facts were clearly wanting in this case and that is all that 666 says.  So, it certainly does not depart from an objective inquiry and it certainly does not import or impose a subjective inquiry in contradiction of established principle.  That is why we say there is no merit in the special leave point.

There is, of course, also this point about the reasoning backwards by looking at ex post facto events to demonstrate the substance in the notice as to the reality of the risk.  We say that that is not permissible.  The reason is, of course, that every time there is a claim in tort for negligence, it is obvious that a risk has manifested itself and, therefore, one may assume it is a real risk.  The pertinent question, of course, is whether it was reasonably foreseeable, as such, at the time that the defendant was in a position to mitigate the risk by the modification of their behaviour.

We say that the applicant’s reliance on the facts after the event in this way, albeit wrong in principle, illuminates the absence of existing facts and circumstances at the relevant time that would support the contents and intended effect of both notices in 2008 and 2010 which demonstrates, we say, that at the time the respondent swathed his GM crop in 2010, the risk of decertification was not reasonably foreseeable by the applicants or anyone else, let alone the respondent himself.

Can I turn, briefly, your Honours, to the factual questions that we say necessarily underpinned the President’s findings in negligence and nuisance and which, we say, cannot be sustained.  The first is referenced between paragraphs 3.11 and 3.16 of the respondent’s summary of argument.  The President found at paragraph 135, application book 187:

that a reasonable person in the position of the respondent ought to have known that there was a real risk that GM canola swaths could be blown by strong winds from Sevenoaks onto Eagle Rest.

That finding was integral to her Honour’s conclusions about reasonable foreseeability in negligence.  One can see that at paragraph 323.

The majority did not consider it to be so relevant to reasonable foreseeability but it was critical to sustaining the finding of breach by an evaluation of the factors set out in section 5B of the Civil Liability Act.  Your Honours will see that at paragraphs 724 to 731 of the majority’s reasons.  The burden of the evidence at trial was that the respondent had actual knowledge of the risk of material being blown from his farm to the applicant’s but that he did not regard that risk as real.

The evidence at the trial was that between the paddocks of Sevenoaks where the GM crop was grown and the boundary of Eagle Rest there was a five metre buffer required by the Monsanto licence arrangements with respect to the GM crop, there was a road reserve of some further 20.9 metres between the two farms and then there were trees that lined either side of the road reserve that had a further protective effect.

In this context, and having regard to that evidence that had been adduced, the applicants did not adduce any evidence of the state of the seasonally prevailing winds in Kojonup at the time of swathing, either as to their strength or as to their direction.  The trial judge’s finding on the basis of this evidence was that the respondent could not reasonably have expected that swaths would be carried across to Eagle Rest by strong winds.

That finding itself was not challenged, although the applicants did challenge the finding that the respondent had given considerable thought to the protective effect of the road buffer and the trees.  The majority saw no basis for disturbing the finding, the trial judge having found the respondent to be a straightforward and essentially reliable witness.

The President’s finding that the respondent ought to have known the risk was a real one was not a finding the applicants sought.  Notwithstanding that the trial judge found the respondent to be a reliable witness, the President queried the reliability of his evidence about how real

he believed the risk to be; we see that at paragraph 132 at page 186.  The basis of doing so, we say, appears to have involved a reversal of the onus of proof regarding the seasonally prevailing winds.  The President seems to have assumed it was upon the defendant, my client, Mr Baxter, to have adduced some evidence of that, rather than the applicants.

The additional bases for her finding are set out at 135, page 187.  We say that the reference to “proven existence of the risk” is likely a deployment of impermissible hindsight reasoning, for the reasons I have already submitted.  The content of the Farmanco newsletter and the Ag Department’s Farmnote 409 is set out at paragraphs 97 and 133, respectively.  Importantly, neither pieces of evidence to which her Honour refers in that regard are fact specific as to the position between Sevenoaks and Eagle Rest.   These are notices issued to generic readers that refer, at their highest, the risk of swaths being blown by strong winds into adjacent paddocks or neighbour’s paddocks.  It is insufficient to supplant the much more specific evidence on which the trial judge relied.

The treatment of Mr Robinson’s evidence was similarly flawed.  We say the evidence viewed in its totality ‑ ‑ ‑

FRENCH CJ:   We are going into a fair bit of detail about the President’s reasoning on the facts here; can you just link that back again to the question of special leave?

MS CAHILL:   Yes.  So, your Honour, the point is this, that this factual question was integral to her findings on negligence, reasonable foreseeability, also in relation to breach and in relation to nuisance.  In the event that this Court granted special leave, the substantive appeal simply would not have sufficient prospects of success because of the inability to sustain this key finding alone.  I think my time is just about up.  I have no further submissions.

FRENCH CJ:   Thank you, Ms Cahill.  Yes, Mr Walker.

MR WALKER:   Your Honours, I only wish to reply on the way in which the threat of decertification affected by what is called “contractual arrangements” is dealt with by the majority in a way that my learned friend has noted is caught up in the language not only of 659 but of 665 and of 666 in their conclusions.  In our submission, actual knowledge in the positive case put on behalf of our clients below was a reference to the fact that the assertions we made to Mr Baxter were, of course, actually known to him and that they contained assertions which were soundly based at the time they were made. 

The actual knowledge notion in 666, that is, not sufficient to show actual knowledge, is obviously not their Honours saying he did not get the letter, he did not read the assertions, he did not know of them.  Their Honours, of course, embrace that incontestable fact.  Rather, they are using it to refer to some, in our submission, doctrinally unjustified further component of what we have called in writing “acquiescence” what might be called conviction or belief, acceptance, which, in our submission, is at odds with the notion of an objective awareness of risk being that which contributes towards, though it does not conclude, the question of duty.  That is why, in our submission, there is a pervasive approach across this and nuisance breach and causation which is an apt case for special leave.  May it please the Court.

FRENCH CJ:   Thank you, Mr Walker. 

The Court is of the view that this application does not provide a suitable vehicle for the determination of the question of principle which the applicant seeks to raise.  Special leave will be refused with costs. 

The Court will now adjourn to reconstitute.

AT 1.43 PM THE MATTER WAS CONCLUDED