Martin v Kelly

[1996] HCATrans 1

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne   No M29 of 1995

B e t w e e n -

OWEN DAVID MARTIN

Applicant

and

JODY KELLY

Respondent

Application for special leave to appeal

BRENNAN CJ
DAWSON J
TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 5 FEBRUARY 1996, AT 11.20 AM

Copyright in the High Court of Australia

MR E.W. GILLARD, QC:   May it please the Court, I appear with my learned friend, MR J. RUSKIN, for the applicant.  (instructed by Dunhill Madden Butler)

BRENNAN CJ:   Yes, Mr Finkelstein?

MR R.A. FINKELSTEIN, QC:   If the Court pleases, I appear with my learned friend, MR J.H.L. FORREST, for the respondent.  (instructed by Richmond & Bennison)

BRENNAN CJ:   Yes, Mr Gillard?

MR GILLARD: Your Honours have our written submissions. At the outset, we just wish to emphasise two matters we say are of some importance. First was when the plaintiff issued her proceedings in this State she was well and truly statute‑barred in the State of South Australia where the accident occurred. Secondly, when her proceedings were instituted in this State they were, on their face, common law proceedings and she had not, at that stage, satisfied one of the very important elements found in section 93 of the Transport Accident Act to enable her to bring proceedings.

Now, probably the main point of this appeal raises the question whether the second condition in the McKain rules has been satisfied and if I could just hand up the extracts from McKain.  I am sure your Honours are very familiar with them.

BRENNAN CJ:   Before you get to that, the Court did make a finding, did it not, under 93(4)(d)?

MR GILLARD:   Yes, it certainly did.

BRENNAN CJ:   By consent?

MR GILLARD:   No, not by consent but what we did, we did not take the point that the application for leave should have been made before the proceedings were issued.  This all arose about two years after the proceedings were instituted.  The plaintiff’s legal advisers obviously thought that they should make application to get leave of the court.  So, at the hearing we did not take the point, we accept we did not take the point, that that application should have been made earlier.

What happened was that his Honour ruled on the various legal points that we have put up and then with our consent we accepted that he would then decide, if he was against us on the justiciability point, that he would decide on the facts during the trial whether leave should be granted.  So, we do accept, your Honours, that we cannot stand here and say that the application for leave should have been made before the hearing commenced.  We accept that.

BRENNAN CJ:   The issue was resolved at the time that the parties agreed that the issue should be resolved.

MR GILLARD:   Eventually, in the course of that trial.  That is so, your Honour.

BRENNAN CJ:   It was resolved in order to determine whether the gateway of 93(4) was open.

MR GILLARD:   That is correct.

BRENNAN CJ:   And it was resolved that it should be open.

MR GILLARD:   Correct.

BRENNAN CJ:   But now you wish to say “Even though it should have been open and we agreed to litigate that matter, having lost, we want to say, well, it does not matter anyhow”.

MR GILLARD:   We really put our argument - I suppose in a way that is what I am saying, your Honour ‑ ‑ ‑

BRENNAN CJ:   Well, I think it is what you are saying, Mr Gillard.  It does not appeal as a special leave point, that is all.

MR GILLARD:   What we are saying, your Honour, and what we do say is this:  the question is whether the second condition of McKain is satisfied and we say that looking at the nature of the section 93 proceeding in this State that that is a cause of action imposing a civil liability of a different kind to that in South Australia. So, given that the gateways may have been open, and we have got to assume that because of the course that we took, we still say that the condition 2 has not been satisfied.

BRENNAN CJ:   But the cause of action in Victoria is different from the cause of action in South Australia.

MR GILLARD:   Yes.

BRENNAN CJ:   The difference being what?

MR GILLARD: The difference, we say, your Honour, is that the cause of action in this State is a creature of statute. In other words, looking at section 93, it abolished the old common law proceeding to recover damages for injury suffered in a motor car accident. It is a new statutory cause of action which has certain elements and the elements are the two gateways have to be established as a fact. You then go to the common law principles of negligence to decide the liability and then you go back to the Act to look at the various provisions which relate to the damages that can be recovered in the course of that proceeding.

So, we say that section 93 is a new cause of action. Now you compare that with South Australia where it is straight common law except that they have a section in their Wrongs Act, 35(a), which has an effect upon the assessment of damages.

TOOHEY J:   Mr Gillard, does that mean that if we look at the proposed grounds of appeal in the draft notice of appeal on page 83 which speak of justiciability and other matters, that we are to read all those grounds as meaning no more than that the cause of action under the statute is a different cause of action to that at common law.

MR GILLARD:   Your Honour is correct.  That is our primary point but we say allied to that is the question of how one decides justiciability.  In other words, it does come back to the first question of whether or not you can maintain proceedings or, as you were, can issue proceedings, if you could not prove your cause of action at the date of institution.  In other words, what does justiciability mean?  In one sense, it does not mean jurisdiction because the County Court had jurisdiction but what do you mean when we talk about justiciability?  What do we mean about suing in Victoria on a foreign tort?  We say that that is akin to jurisdiction, even though you use another phrase.

So, your Honour Justice Toohey, we accept that our draft grounds do raise the first point that I have already put to the Court but this case also raises the question, “What is meant by justiciability and at what point in time should that be determined, on what set of facts?”  Now, what happened here, of course, is that later events made it justiciable in the sense that later events, the second element she had not established at the institution of the proceedings had not been satisfied but was satisfied later.  What does justiciability mean?  And it is very hard to find any case which tells you that.

TOOHEY J:   But given the concession that was made as to how jurisdiction might arise and accepting that jurisdiction cannot be conferred upon a court that has not got it, nevertheless, that concession makes it very difficult to see this as a special leave question in this case.

MR GILLARD:   Your Honour, it is the second point we put which your Honour is putting to me now.  We say that, irrespective of the concession, when the point was argued - now we cannot deny they had their application on foot - we did argue that it was a different cause of action and that as the proceedings then stood the matter was not justiciable.

DAWSON J:   Now, you use the word “justiciable”.  Those are not the words that we used in McKain v Miller or ‑ ‑ ‑

MR GILLARD:   No, I know, your Honour.  It says - I have looked at it again this morning:

A plaintiff may sue -

What is meant by the “plaintiff may sue” and how is that different from jurisdiction?  Recently, in the Full Court of New South Wales Justice Clarke pointed out that there is a distinction and, with respect, we would submit that is clear between jurisdiction and the right to maintain a proceeding, but what is it?

BRENNAN CJ:   One difference is that if the plaintiff does sue it is the court that has power to deal with the matter.

MR GILLARD:   Yes, I accept, your Honour, and we accept that there was jurisdiction in the County Court.  The defendant was resident in this State.  So, that was clear.  We accept all that.  But then we have these foreign tort rules.  The question is, “You may sue; you have got to satisfy two conditions” ‑ ‑ ‑

DAWSON J:   How do you formulate the test in accordance with McKain v Miller?  What do you have to establish?

MR GILLARD:   You have to establish the two conditions, your Honour.

DAWSON J:   How do you phrase those?

MR GILLARD:   Well, as it is set out there.  In other words, if the circumstances occurred here you could sue here, point 1; and point 2, by reference to the lex loci ‑ ‑ ‑

DAWSON J:   But it is not.  I;t is reference to a civil liability of the kind that has existed in the other place and here you have a civil liability for damages for personal injury.

MR GILLARD:   Yes.

DAWSON J:   It may be that there are some preliminary hurdles to overcome in Victoria which do not exist in South Australia but, nevertheless, there is a civil liability of the kind which you find in South Australia.

MR GILLARD:   That is the interesting question “of the kind”.  You see, your Honour ‑ ‑ ‑

DAWSON J:   But you do not take a narrow or a pedantic view of it.

MR GILLARD: No, I accept that but we say that section 93 is something entirely different.

DAWSON J: The end result under section 93 is that there is, if the preconditions are satisfied, a civil liability for damages for personal injury caused by negligence.

MR GILLARD: Yes, well, I cannot deny any of that but what we are saying is that on a proper analysis of section 93 it abolishes the common law and substitutes a new statutory cause of action.

DAWSON J:   Which is of the kind which is afforded at common law in South Australia.

MR GILLARD: It is not of the same kind, with respect. You have got the two elements to get. The first two are the gateways, as we have called them. Then we pick up the common law and then the rest of section 93 relates to the damages.

DAWSON J:   In the end, if the plaintiff is successful, what does she get?  She gets damages for injuries caused by negligence.

MR GILLARD:   Yes, and a lot more in this State than in South Australia.

DAWSON J:   That may be so.

MR GILLARD:   But, your Honours, on this very point I just want to just emphasise one other matter and I wish to take your Honours to section 35A of the South Australian Act.  It is found in the application book at page 51, conveniently set out there.  Before we go through it, what we say is this:  there is your common law in South Australia and this sets out the various heads of damage and the caps and your Honours will see that 35A(1) says:

Notwithstanding any other law, where damages are to be assessed for or in respect of an injury arising from a motor accident, the following provisions apply -

and then it goes on.  Now, the point we wish to make, your Honour, is this, that at subsection (7) on page 54 we say that the legislature in South Australia has made it clear that for the purposes of South Australian law, these provisions are substantive and it says:

This section is intended to apply to the assessment of damages in respect of an injury arising from a motor car accident that occurred in this State -

(a)      irrespective of whether the assessment is made by a court of the State or by a court of some other State, territory or country;

and

(b)      notwithstanding that the court by which the assessment is made would not (but for this subsection) assess the damages in accordance with, or by reference to, South Australian law.

Now, we say that that is an indication by the lex loci that these provisions are to be treated as substantive as distinct from in Stevens v Head where the Court construed them as procedural.  Now admittedly, I cannot deny this, subsection (8) goes on to talk about what happens in those circumstances and if the State Insurance Office of South Australia is involved, then it has certain powers to recover damages, et cetera.

We say that that subsection (7) is an indication according to lex loci that this particular section relating to damages is of a substantive nature and it is an indication by the legislature of South Australia. Now, we then come back to the point you are putting to me, “Are they proceedings involving a civil liability of the same kind?” We say that, in South Australia, is the position and there are heads and the heads hold back the damages, they cap them far greater than they do in this State, and there is an indication by the lex loci that that should be treated as substantive law of the State of South Australia and we say you then compare that with section 93.

There is some doubt about precisely how one characterises section 93, whether it is an abolition of the common law. I think Justice Ashley in Wilson v Nattrass, suggests it was.  Justice Hedigan, I think, says much the same thing, but he uses the words “contingent” and “limited”, as has been used in this Court, I think, in Stevens v Head. We say that is a completely different type of civil liability and so, you have those two competing and we say that this does raise questions of justiciability. It raises questions of what is meant by civil liability of different kind and we also say that it is a matter of general importance because, as has been indicated, there was a number of cases handed down at the end of last year involving the Full Courts of two other States where they had to work out what section 93 was and whether it was part of the substantive law of this State.

So, it has been a matter that has been debated in other States and we hand up to your Honours Thompson v Hill.  Now, your Honours, while that is being handed up could I state this: there were a number of cases evidently referred by the common law trial judge in New South Wales up to the Full Court but the one they dealt with was Thompson v Hill and, in a nutshell, Mr Thompson is a New South Wales resident.  He happens to come to Victoria and he was bowled over at Flemington, only a matter of a few miles out from where we are.

He goes back to New South Wales and he issues proceedings.  At that stage I think he had made some application to the TAC in this State but nothing had come of it so what this case does demonstrate is that there was some disagreement as to what Wilson v Nattrass decided and at page 22 in the judgment of the then President of the Court of Appeal, President Kirby, at page 22, the question arose whether the court should follow Wilson v Nattrass and his Honour said at the bottom of page  22:

Even if this Court were inclined for itself to treat the provisions in s 93 of the Victorian Act as procedural.....what is it to make of the fact that the highest court in Victoria has ruled that the provisions (or the most important and relevant of them) are substantive and have the effect of abolishing the cause of action at common law for negligence arising out of the circumstances of a transport accident in Victoria, substituting in its place statutory rights as defined in the Act?

Let there be no doubt that this is what the holding of the Victorian Appeal Division provides.

And he went on to say that - if you go to two‑thirds down page 23, his Honour says - and the sentence starts at the end of the side of the page on the right:

The common law entitlement to damages had been abolished. Section 93 had substituted various statutory entitlements, subject to statutory procedures. The governing provisions of section 93(1) were not to be seen as procedural - preserving the old common law action and simply requiring certain procedures to be followed for its enforcement. It was substantive.

BRENNAN CJ:   Where does that notion come from that there is a change in the substantive law in Victoria?  From what judgment?  The passage cited by the President chiefly is that of Justice Ashley but the passage cited on page 24 of the judgment, his Honour Justice Ashley says:

Once this structure of s 93 is understood, the proper construction of sub‑ss (1), (2) and (4) appears to me to be that, subject to the condition or contingency being established, the common law right of action previously enjoyed.....is extinguished.

If it is not established, then I presume the common law action is not extinguished.

MR GILLARD:   Well, no.  We say that if it is not established a common law action is no longer available in this State.

BRENNAN CJ:   Well, one of two things:  if the gateways are opened is there a cause of action?

MR GILLARD:   Yes.

BRENNAN CJ:   What is it?

MR GILLARD:   It is a statutory cause of action.

BRENNAN CJ:   Where does the statute give the cause of action?

MR GILLARD: In section 93.

BRENNAN CJ: Where does it give it in section 93?

MR GILLARD:   It clearly imports - I cannot deny it imports the common law but, your Honour, the Wrongs Act did likewise. 
Lord Campbell’s Act did likewise.  I think we have referred to the section in the Wrongs Act and that has always been ‑ ‑ ‑

BRENNAN CJ:   Lord Campbell’s Act gave a new cause of action, did it not?

MR GILLARD:   It did, where one never existed.  I accept that.

BRENNAN CJ:   Now, this is a section which is intended to extinguish the cause of action in certain circumstances?

MR GILLARD:   Yes.  Well, no.  With respect, we say that a proper construction of 93(1) actually does extinguish the common law cause of action and says, “Hereafter you can only get damages in accordance with this section” and, of course, this section, you import into it some common law principles but only part of it.

DAWSON J:   What would it matter if, in the end, the liability is of the kind which existed at common law.  The fact that it is statutory does not make any difference.

MR GILLARD:   Your Honour, why do we have these rules on foreign torts?  I mean, there must be some reason for them and we say you look at South Australia, that is it, and you look at Victoria and that is it.  With respect, you are quite right in the end.  That is where we end up.  Of course we end up like that but why do we have the rules?  There must be some reason for them.  Well, we will not go into that.  I mean, we are all aware of Phillips v Eyre and why it came in, et cetera, et cetera.

Your Honours, can we just say this. I am colour blind, your Honour, but I think I am on the red. I think this was the first time I have been run out with a third umpire but I can say this, your Honour, that not only do we have that judgment, but we have the judgment from South Australia which, I suspect my friend may refer your Honours to where Chief Justice Doyle grapples with the same problem, “What is a section 93?” and, again, there is some debate about the true nature of the cause of action.

BRENNAN CJ:   Thank you, Mr Gillard.

MR GILLARD:   I have been ruled out, if your Honour pleases.  I am run out.

BRENNAN CJ:   We need not trouble you, Mr Finkelstein.

Having regard to the course taken at the trial to determine the issue under section 93(4) of the Transport Accident Act 1986 (Vic), this application does not relate to an appeal having sufficient prospects of success to warrant a grant of special leave. Accordingly, special leave is refused.

MR FINKELSTEIN:   I seek an order for costs, if the Court pleases.

BRENNAN CJ:   You have nothing to say about that, Mr Gillard?

MR GILLARD:   I do not think we can oppose that, your Honour.

BRENNAN CJ:   Special leave is refused with costs.

AT 11.55 AM THE MATTER WAS CONCLUDED