McDonnell v Darwin City Council

[2000] HCATrans 119

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D13 of 1998

B e t w e e n -

GLEN McDONNELL

Applicant

and

DARWIN CITY COUNCIL

First Respondent

NORTHERN TERRITORY OF AUSTRALIA

Second Respondent

Application for special leave to appeal

GLEESON CJ
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 24 MARCH 2000, AT 11.11 AM

Copyright in the High Court of Australia

MR I.D. NOSWORTHY:   May it please the Court, I appear for the applicant.  (instructed by Hunt & Hunt)

MR T.R. ANDERSON, QC:   If the Court pleases, I appear with my learned friend, MR K.G. NICHOLSON, for the first-named respondent.  (instructed by Ward Keller)

MR S. WALSH, QC:   If the Court pleases, I appear with my learned friend, MS R.J. WEBB, for the second-named respondent.  (instructed by Solicitor for the Northern Territory)

GLEESON CJ:   Thank you.  Yes, Mr Nosworthy.

MR NOSWORTHY:   With respect to the Court of Appeal, its decision is wrong in that, firstly, it is contrary to the decision of the trial judge; secondly, it is inconsistent with the decision of Pritchard v Racecage, the Cannonball Run Case, which appears at tab 5 of the authorities where, in a unanimous decision of the Full Federal Court, Justice Branson said:

A reading of the MAC Act as a whole does not disclose, in my view, an intention to make the Territory Insurance Office, or the compensation contributions…..in respect of injuries or death claimed to be caused by –

I emphasise those words -:

the misleading ‑ ‑ ‑

GLEESON CJ:   I am terribly sorry, Mr Nosworthy, you said “behind tab 5”?

MR NOSWORTHY:   Tab 5 of the authorities, I think, sir, yes.

GLEESON CJ:   Behind tab 5 I have got a case of Mercantile Mutual.

MR NOSWORTHY:   I apologise.

KIRBY J:   What is the name of the case?

MR NOSWORTHY:   It is Pritchard v Racecage, your Honour.

KIRBY J:   It is tab 3, we are told.  This is the decision of Justice Branson.

GLEESON CJ:   Yes.

MR NOSWORTHY:   That is right, your Honour.  It is at page 214 of that decision.

KIRBY J:   It is said that you inadvertently left out a critical phrase in her Honour’s reasons.

MR NOSWORTHY:   That is correct.  That was said and we apologise for not having dotted lines.

KIRBY J:   Is the additional phrase relevant, in your submission, or not?

MR NOSWORTHY:   No.  The reason the additional phrase is not relevant is that were the matter properly understood even more words would have been left out because the importance in her Honour’s reasoning is the need to focus on the conduct which is impugned and here, as in Pritchard v Racecage, the driving of the motor vehicle was not conduct which was impugned.

KIRBY J:   Mr Nosworthy, though it is of interest that the Full Court’s reasoning is said to be inconsistent we, of course, are not bound by that, so I think it is more useful for us for you to tell us what you say is the essential error that the Court of Appeal fell into here.

MR NOSWORTHY:   I will come to that, if I may, in a moment, your Honour.  We say, also, that the decision of the Court of Appeal is inconsistent with the authority of Clyne v Gulbin (1995) 65 SASR to be found, hopefully, at tab 7 of the authorities - yes, it is - at page 399 where Justice Millhouse in the South Australian Supreme Court considered exactly the same point under the South Australian legislation which modifies the common law assessment of damages and found that where the driver of a car hit a cow at night, but without negligence on his part, his injuries were not a consequence of the driving of the motor vehicle.

We say, in essence, that the Court of Appeal erred in concluding that the incidental involvement of a motor vehicle was sufficient to permit a defence to be raised.

KIRBY J:   But the statutory phrase here is not caused by the motor vehicle, but arising out of, is it not?

MR NOSWORTHY:   It is both.

KIRBY J:   That is a phrase is very well worn in this area and has been given a wide ambit because it is often the nexus between injury and recovery, practical recovery.  That is why courts have normally given it an ample construction.

MR NOSWORTHY:   That is true.

KIRBY J:   It is just a bit of a problem for your client that that leads to an unfortunate result in his case.

MR NOSWORTHY:   I will come to the unfortunate result and the consequences of that in a moment, if I may, your Honour?

GLEESON CJ:   The expression used, as appears from page 58 is:

caused by or arising out of the use of a motor vehicle ‑ ‑ ‑

MR NOSWORTHY:   That is right and we say ‑ ‑ ‑

GLEESON CJ:   Which is the expression that was used in the South Australian statute., “An incident or injury which is caused by or arises out of the use of a motor vehicle”.

MR NOSWORTHY:   The South Australian wording is, “were not a consequence of the driving of a motor vehicle”.  The reason this case is of importance and should warrant the grant of special leave is that all the statutes in Australia which deal either with motor accident compensation or no fault schemes or the statutory modification of common law rights in motor cases all have an approach based on causation.  They use different words to express the same concept.  Each scheme applies to accidents which are:

caused by or arising out of the use of a motor vehicle ‑ ‑ ‑

KIRBY J:   I can see the point Justice Millhouse raises on “caused by” because that is a matter of assignment of the cause, but, it is, “or arising out of”.  How could one say that the injury to your client did not arise out of the use of a motor vehicle when he is on the motor vehicle and driving along and hits the pipe.  I mean, how could you say it does not arise out of the use?

MR NOSWORTHY:   Because we say that the operative negligence was wholly the erection of the bar.  It would not have mattered whether he was on a pushbike or running and the fact ‑ ‑ ‑

KIRBY J:   Would not the danger of a narrow construction be, if the Court were to take a narrow construction, that that could have very unfortunate consequences for the coverage of other plaintiffs in phrases of that kind in statutes which extend the beneficial operation of the Act by reason of that phrase?

MR NOSWORTHY:   You have read in the papers, no doubt, of the assertion that this legislative scheme provides a beneficial operation in the case of people, including this applicant, and that is simply not so.  He is disqualified from benefits by reason of the operation of section 9(d), so that the only so-called benefits that he receives are the ability to have medical treatment.  So, it is not a question of benefits at all and if your Honours were to have regard to the schedule of cases that we provided to the Court you can see that, on both sides of the fence, there are narrowly distinguished sets of facts which really bring this area of the law into disrepute.

We filed a schedule of cases which has two sets of cases, (a) and (b).  The first sets talks about cases where there is a finding of no causal link and you can see that Augusto v TIO in that list is contrasted with Dickenson v Motor Vehicle Insurance Trust, so, that you have in one case children in a car lighting matches and they are not covered but children in a car playing with a cigarette lighter are covered.  So, to answer your Honour’s question, there are already a series of fine distinctions in this case and the real question is whether or not the legislation intended to bar this claim by the mere coincidence of the involvement of a vehicle.

You see all the statutory schemes talk of “consequence of driving”, “a result of driving” or words to that effect and the only conceivable reason why the legislators would choose these words could be to distinguish two kinds of accident.  The first, in which a motor vehicle was involved, was merely as an element of the factual matrix in which the accident has occurred, and, the second, an accident which is really caused by the use of a motor vehicle.  Now, the only possible purpose for drawing such a distinction could be to exclude the first situation from the scope of a no fault accident compensation scheme and in such a case a no fault scheme should not be invoked to artificially restrict or eliminate a plaintiff’s common law rights.

GLEESON CJ:   But, as has been pointed out to you, this cuts both ways.  If your client had been injured in circumstances where there was no possible allegation of negligence on anybody’s part, it would have been to his advantage to come under the no fault scheme.

MR NOSWORTHY:   To a degree that approach involves, as we have put in reply,  putting the cart before the horse.  What Justice Branson says in Racecage is that the first thing you do is to look at what is the negligence which is impugned and then you see whether the defendants are able to make out some form of statutory bar.  The way that your Honour is putting the matter to me at the moment and the way the error, if I might say so, with respect, into which the Supreme Court of the Northern Territory fell until Schubert v Lee was overruled by the Court of Appeal in this case was to say that it was for the plaintiff to plead and prove that he did not fall within the MAC Act, whereas that is, with respect, to put the cart before the horse.

The plaintiff here - and if I might say so, your Honour, in the course of the way I would propose to argue the matter, apart with dealing with an error in construction which we say that the Court of Appeal made, was to point out ‑ ‑ ‑

CALLINAN J:   Mr Nosworthy, before you get to that, could I just say to you that my interest was attracted to the construction point.

MR NOSWORTHY:   Yes, your Honour, I can ‑ ‑ ‑

CALLINAN J:   Could I draw your – I rather suspect you have made your point on your first matter but, in any event, may I take you to your construction point.  Is it your contention that the appeal court erred at page 65 in holding that there could only be an “entrance driveway” if there were some form of construction, which I take to mean man-made construction.

MR NOSWORTHY:   We certainly do argue that they erred in that regard, your Honour.

CALLINAN J:   Was there any evidence that there were worn tracks or anything of that kind which would have facilitated the entrance to the vacant land?

MR NOSWORTHY:   There were photographs before the court which showed a scantly used access track but ‑ ‑ ‑

CALLINAN J:   But there was an access track ‑ ‑ ‑

MR NOSWORTHY:   On the construction – I am sorry, your Honour.

CALLINAN J:   There was an access track, albeit that it seems to have been one that was caused by the wearing of tyres or the movement of vehicles and people, is that right?

MR NOSWORTHY:   That is right, yes.  There was some reference, if I can say so, to the use of - the reason the pipe was down most of the time was because Telecom complained about it and they had to get in there occasionally to do some Telecom related work.

CALLINAN J:   Telecom used it as an entrance to the vacant land, is that right?

MR NOSWORTHY:   That is right.  The evidence was there was a very limited use.

CALLINAN J:   In any event, the pipe itself was some form of construction, I take it?

MR NOSWORTHY:   Indeed it was, and that point was one that we sought to make because if your Honours will go back to application book page 62, the last line, you will see that the Court of Appeal held that it:

was a place to which the public could physically go, as of right –

yet inconsistently and contrarily and half a dozen lines later they held that when the pipe was erected it “prevented the passage of vehicles”.  That is an internal ‑ ‑ ‑

CALLINAN J:   They seemed to think that there had to be “a construction of some sort”.  That is at line 43 to 45, 46.

MR NOSWORTHY:   That is right, and there plainly was.

KIRBY J:   But if you look at the structure of the Act, can one say that “entrance driveway” in this context is designed to exclude the drive of a built up nature in a home as distinct from the public street?  In other words, if that is the purpose of the legislature in drawing this distinction as distinct from what is, in effect, a street that is used by members of the public.

MR NOSWORTHY:   The trial judge grappled with that and addressed it in much the way that your Honour has.  The Court of Appeal, I think, concluded that essentially it was not necessary to deal with it in that depth but we say that perhaps the more major point of construction relates to whether it was open to, or used by, the public or whether there is a right to declare a class of the public as relevant, and that distinction has been acknowledged in a series of cases.  My friend, Mr Walsh, in his outline denies that proposition but indeed in Schubert v Lee this Court – admittedly some considerable period ago – at page 592, behind tab 1, talked about:

real use of the place by the public as the public –

and distinguished - I do not want to spend time on that issue, but we say that there is a construction point which is a point of importance, also.

GLEESON CJ:   I would just like to be precise about the point of construction.  Is the point of construction that you say is involved whether or not the place at which the accident occurred was an entrance driveway and was therefore excluded from the definition of a “public street”?

MR NOSWORTHY:   That is one such point for which I am indebted to his Honour Justice Callinan, the point of ‑ ‑ ‑

KIRBY J:   It is your ground 2.2, I think, in the grounds of appeal, on page 74.

MR NOSWORTHY:   It is, your Honour.  That is true, but we say that the definition – the Court of Appeal postulated a test in relation to the definition of “public street” relating to whether it was:

“open to, or used by, the public” –

but they did so by holding inconsistently at the passage I have referred to at the foot of page 62, line 50, that it:

was a place to which the public could physically go as of right –

Yet at page 63 they inconsistently held that when the pipe was erected it prevent the passage of vehicles.  Now, they cannot have it both ways, with respect. 

I see time is running against me, your Honours.  I want to point out, if I may, that when considering how this matter went below it is important to appreciate that the plaintiff’s claim was framed in negligence.  It was the defendants who raised the technical defence and the nature of the plaintiff’s claim was largely obscured in the judgment at first instance and in the Court of Appeal because most of the time taken focussed on whether or not the technical defence of Wickham v Tacey was available, and, ultimately, that was overruled in the Court of Appeal.

I do not want to spend further time on that but to say simply that the case came in a way with the cart leading the horse.  The issues raised by this application are of public importance because, at a narrow level, the applicant seeks to redress what he submits is an injustice to him in that if the section 5 defence is available to the respondents by reason of section 9(d) of

the MAC Act he is denied compensation to loss of earning capacity and denied compensation for permanent impairment.

The other narrow issues relate to whether or not the section 5 defence literally applies; the availability of that defence to those who do not contribute to the scheme, which is plainly, and common ground, in this case; whether the defendants are entitled to the section 5 defence and the section 9 exclusion, even if they are not entitled to indemnity under section 6; what is the meaning of “public place” in such legislation; what is the level of evinced control which will determine whether a place is a public place or not and where it is that an occurrence occurs, did it occur on the approach to the pipe, et cetera.  More broadly, the appeal raises the ambit of no fault schemes such as that established in the Territory.       In the preamble to the Act it only purports:

to abolish certain common law rights –

not all such rights.  It does not indicate any intention to abolish all common law rights and, given the approach which we respectfully adopt in Pritchard v Racecage, it does not do so where a motor vehicle is simply involved coincidentally.  It raises questions relating to the drafting of no fault schemes under the common law ‑ ‑ ‑

GLEESON CJ:   Thank you, Mr Nosworthy.

MR NOSWORTHY:   Thank you, your Honour. 

GLEESON CJ:   Yes, Mr Anderson.

MR ANDERSON:   If the Court pleases, the matters raised by my learned friend indicate of course that this is an unfortunate case but, as I think your Honour Justice Kirby said, the scheme did not just occur; it was a scheme which was bringing into play words which were well known and well versed in this area.  They were words “arising out of the use of a motor vehicle” which were significant.  In answer to a question put to my learned friend, he said that the words that were omitted in the summary, which was the quotation from her Honour Justice Branson, did not make any difference.  With the greatest of respect, we say they do make a lot of difference because those words are “or otherwise by the use of a motor vehicle”.

GLEESON CJ:   I should have thought there are few phrases that have been the subject of more judicial decisions than “arising out of the use of a motor vehicle”. 

MR ANDERSON:   With respect, that is a very well-worn track by all superior courts.

GLEESON CJ:   We do not need to hear you further on the Motor Accidents (Compensation) Act point.

MR ANDERSON:   If the Court pleases.  The other points, can I ‑ ‑ ‑

KIRBY J:   I need to hear you on the entrance driveway point.

CALLINAN J:   So do I.

GLEESON CJ:   It is a point about the construction of the expression “on a public street”.

MR ANDERSON:   Yes.  Can I put to the Court this, that there was a four‑tiered process in the course of the trial and the appeal and that was our contention, which was rejected by the trial judge and upheld by the Full Court, that this accident occurred on a road, a road plainly and simply without any wider definition within the meaning of the Act.

KIRBY J:   The argument was it was a track or something like that, was it not?

MR ANDERSON:   Yes, your Honour.  It was a road, we maintained and the Full Court agreed, because it was shown as – the survey indicated where the accident happened was on the roadway.

KIRBY J:   All right, that is step one.

MR ANDERSON:   That was the first step.  The second step was that in any event it could come in under the wider definition, if it was not a road simpliciter, by the fact that it was open to, on the first hand, or used by the public, on the second hand.  What the Full Court did was say, “We don’t have to decide whether it was open to, but we find on the whole of the evidence that it was used by”.  Then the fourth stage was the entrance driveway.  Can I say to the Court at the outset that the importance of the entrance driveway was coincidental – I do not mean to reduce its importance – because, although it applied at the time this accident occurred, that legislation was removed from the legislation.  I cannot tell the Court at the moment exactly when but, by the time we got to trial ‑ ‑ ‑

KIRBY J:   This is on the basis that this is no longer a live legal issue but, on the other hand, it is an extremely important issue to this particular plaintiff.

MR ANDERSON:   Yes, I cannot get away from that.

KIRBY J:   Therefore, if he has a good legal point on this issue, it is a winner for him.

MR ANDERSON:   I cannot get away from the fact that for this particular plaintiff, if the Court says that means it is a matter of public importance, I have nothing that I could rightfully put against that.

GLEESON CJ:   No, but put your point.  What is your point about whether it is an entrance driveway?

MR ANDERSON:   The entrance driveway I think we deal with – I am somewhat caught by this, I have to confess, because it was not argued in the Full Court and, although ‑ ‑ ‑

GLEESON CJ:   What was not argued in the Full Court?

MR ANDERSON:   The entrance driveway point.

CALLINAN J:   They dealt with it at page 65.

KIRBY J:   The primary judge found this against the plaintiff, did he not?

MR ANDERSON:   Yes, and the Full Court just said they agreed.

KIRBY J:   But they did deal with it.

MR ANDERSON:   There was not the argument that has now been put.  I am not trying to walk away from it, but it is ‑ ‑ ‑

KIRBY J:   Just leave aside everything that has happened.  Why is it not an entrance driveway?  It is a drive and people drive along it, it is going to a place and it has a structure put across it to stop people unnecessarily going through it.  If it looks like an entrance driveway and it feels like an entrance driveway, why is it not an entrance driveway?

CALLINAN J:   And is used as an entrance driveway.

MR ANDERSON:   That may be so, with respect, your Honour.  Before I answer the question that the Chief Justice wants to hear me on, can I just remind the Court of what it was.  The facts were that it was used by young children and it was used, as my learned friend put, by the Telecom vehicle because they had a pit in there and it was coincidentally used by people who traversed the park to get from one street to another.  In other words, it was a shortcut.  That was its use.  We maintained at the trial, and the trial judge agreed – and I suppose what I am going to be forced to do is adopt his reasoning - but he agreed that it was not an entrance driveway.  The reason that stood out was that it was not in the contemplation of the legislation because “entrance driveway” would mean what you would expect it to mean:  entrance to a house, a property, et cetera, and not an area which – see, the problem would have been defining where the entrance driveway started and finished.

GLEESON CJ:   If this was an entrance driveway, what was it an entrance to?

MR ANDERSON:   That is what I was just leading to, if your Honour pleases.  Where did it start and finish?  If it was an entrance driveway – and we say that walking along a kerb side and seeing an entrance driveway going into residential houses or even into commercial premises, you have a start and a finish, but there was not any such thing here.

CALLINAN J:   What was the purpose ‑ ‑ ‑

MR ANDERSON:   Because it was just a road continuing.

CALLINAN J:   But what was the purpose of the pipe then if it was not to close off an entrance to something?

MR ANDERSON:   The purpose of the pipe was to designate that it was end of a street.

CALLINAN J:   To close off the street.

MR ANDERSON:   To show this is the end of the street, effectively.

CALLINAN J:   And to deny entrance also to something else?

MR ANDERSON:   Well, to put up a barrier which would indicate to people that it was just that, a barrier.  But, as we all know and as this case shows, those things are not observed.  Whether the barrier or the pipe was up or down, people got under it, walked under it, put their bicycles under it, put their motor bicycles under it if it was down and went through, and they went through for a variety of reasons.  It was quite a large area of some acres - I cannot remember how many but I am sure my friends from the Territory will know – dividing this street, Verburg Court, with another main thoroughfare some hundreds of metres away.  It was for that purpose that it was used, as I put it to the Court, as a shortcut.  So that all we can really say is that it was not an entrance driveway in the sense that you would expect was contemplated by the legislation which was something capable of clear definition which could be easily defined.

GLEESON CJ:   Is part of your point that entrance driveways are normally there to facilitate, not to prevent, entrance?

MR ANDERSON:   We would say that of course, your Honour, yes.

KIRBY J:   But in Australia, deriving it from England and castles, it is not unusual to put either a drawbridge or a gate in the way of getting into the house.  That is the entrance.  Most people do have a gate of some kind on their entrance driveway.

MR ANDERSON:   Which does act as a barrier to some extent; I accept that.

KIRBY J:   What is Verburg Court?  Could you explain what that was?

MR ANDERSON:   Verburg Court is the road on which the finding is that this accident occurred.

KIRBY J:   And where did that road actually lead to?  It led to a Telecom dump.  What else?

MR ANDERSON:   No, it led to a park.  It is very difficult to explain this because of the geography.  Verburg Court was a fairly short street, say, 200 or 300 metres long, that ran east‑west.

KIRBY J:   Is that the road on which the plaintiff was injured?

MR ANDERSON:   Yes.

KIRBY J:   I see, so it is ‑ ‑ ‑

MR ANDERSON:   It was the eastern end of ‑ ‑ ‑

KIRBY J:   And it is leading up to a park, is it?

MR ANDERSON:   The park adjoins ‑ ‑ ‑

KIRBY J:   So, if you want to enter the park, you go along Verburg Court?

MR ANDERSON:   Yes, your Honour, or you could get into ‑ ‑ ‑

KIRBY J:   This is the entrance driveway to the park?

MR ANDERSON:   Well, you could get into the park any number of ways but this is a means of getting into the park.

GLEESON CJ:   It is like George Street is an entrance driveway to the Sydney Harbour Bridge.

KIRBY J:   But the Sydney Harbour Bridge is slightly more prominent.  This is just a humble suburban park in suburban Darwin, is that correct?

MR ANDERSON:   I might even be gracing it by calling it a park.  It was a reserve and it was overgrown, it was ‑ ‑ ‑

KIRBY J:   If somebody said, “Where were you?”  “I was on Verburg Court”, and if they said, “Oh, is that an entrance driveway to the reserve?”, would you be shocked and horrified if somebody said, “Yes, it’s the entrance driveway to the reserve”?

MR ANDERSON:   No, I would not because by plain English it ‑ ‑ ‑

KIRBY J:   If plain English makes it an entrance driveway to the reserve, why is not an entrance driveway?

MR ANDERSON:   I cannot answer that.  I have accepted that if that is the Court’s view.  If that is an entrance driveway ‑ ‑ ‑

KIRBY J:   What is the consequence of finding that the primary judge was wrong and that the Full Court ought to have corrected him and held that the road on which the plaintiff was injured was an entrance driveway within the Act?

MR ANDERSON:   The problem is – you see, it goes back to the trial judge and the findings of fact because it was all of the findings of fact which led to the conclusions in relation to how the road was used and how the reserve was used which led him to the conclusion which it was, in the circumstances of this case, not an entrance driveway.  That is the problem that I pose.

KIRBY J:   Why is that not an error of fact finding which ought to have been corrected by the Court of Appeal?  Why is it not an entrance driveway to the reserve and made manifestly so by the fact that somebody puts a pipe across it?

MR ANDERSON:   It is an entrance driveway in the broad sense; I accept that.  I have to.

KIRBY J:   Once you concede and accept it, why should not the primary judge have so found and why should not the Court of Appeal have corrected him in that finding?

MR ANDERSON:   Because the primary judge had before him all of the evidence showing the use of the land in conjunction with the use of Verburg Court and he directed himself that, “Having regard to all of that, I don’t consider in the real sense that it is an entrance driveway”.

GLEESON CJ:   Could you mention the page numbers of the application book where his reasoning appears?

MR ANDERSON:   Certainly.

KIRBY J:   Is it 12 to 13?

MR ANDERSON:   I would have to find them, I confess.

KIRBY J:   He says on 12, 6.3:

Was the eastern end of Verburg Court and the track an “entrance driveway”?

He says it is shrouded in mystery.  It is just an ordinary phrase.  He gives a couple of definitions from the Oxford dictionary of “driveway” which may be a different thing in England than it is here.  He then goes to the Macquarie dictionary.  He says:

the entrance to a driveway, is not the same thing as an “entrance driveway” ‑ ‑ ‑

MR ANDERSON:   Is your Honour on the bottom of page 13?

KIRBY J:   Yes.

MR ANDERSON:  

Further, the entrance to a driveway, is not the same thing as an “entrance driveway”, and I consider that the draftsman meant to exclude more than the mere point of entrance.

CALLINAN J:   Then his Honour goes on to say on page 14 that he would have expected it to be on private land or to lead to a house or building.

MR ANDERSON:   I am sorry, which part is your Honour on?

CALLINAN J:   Page 14, about lines 24 to 27.

MR ANDERSON:   Thank you.

KIRBY J:   I suppose his point is that in the structure of this Act, generally speaking, you would not want to be excluding the Act because the Act is beneficial and therefore, if you had the case of a person who had been injured without the negligence of somebody else on this road, you would be wanting to bring it within the Act and therefore in that context, you would not be saying that this is an entrance driveway.  In the facts of this case, it is extremely important for the plaintiff who brings his case against you not in motor vehicle negligence but on your incompetent maintenance and upkeep of this entrance driveway.

MR ANDERSON:   Yes.

CALLINAN J:   Mr Anderson, does the new legislation contain any definition of an entrance driveway?

MR ANDERSON:   I cannot answer that, your Honour.  I think the answer is no but I will check that.  Can I just say in answer to your Honour Justice Kirby a moment ago that the other thing that may have been – I accept that it is surmising what the trial judge was doing.  The other thing that maybe he was doing was comparing this, I will call it entrance, at the end of a road as distinct from one on the edge of the road and not in fact on the road.  I think that was what his Honour was saying in those passages that I have just taken the Court to.  The bar in fact was further in than the end of the road.

KIRBY J:   If you have a palatial mansion, then your gate will be set back a little bit.  It would still be your entrance driveway.

MR ANDERSON:   Yes.

KIRBY J:   Judges know less about this than counsel.

MR ANDERSON:   It is very difficult and I do not walk away from the fact ‑ ‑ ‑

KIRBY J:   Is not the problem really that the Full Court really laid down a criterion for entrance driveways of construction?  But there was a construction; there was this pipe.

MR ANDERSON:   The Full Court – yes, at page 65.  Yes, they did.

CALLINAN J:   Not only that, they seem to think that there had to be some man-made structure and I am not too sure that that would necessarily be so.  A long passage of vehicles to make a track might suffice.  I am not saying that is so but it is arguably so, I think.

KIRBY J:   In Canberra they do not like fences and so on.

MR ANDERSON:   All I can say is the trial judge’s process appears to be that the gate or the bar was not on an entrance driveway, it was across.

GLEESON CJ:   If leave to appeal were granted in this matter, would there be any prospect of a photograph?

MR ANDERSON:   Yes, there is lots of those.

KIRBY J:   Were there photographs?

GLEESON CJ:   In the evidence.

MR ANDERSON:   Yes.

GLEESON CJ:   You would not have in mind showing us one now, would you?

MR ANDERSON:   No, I cannot, your Honours.  I apologise because I did not appreciate the significance of it.  Yes, I can.  Yes, that would help.

KIRBY J:   What does one do, Mr Anderson, if there is an arguable point of fact and law and it is extremely important to this plaintiff?

MR ANDERSON:   One sympathises with the plaintiff but one ‑ ‑ ‑

KIRBY J:   Is that a thing I have to put out of my mind, that this man is quadriplegic and I just have to look at it as a cold question of what is an entrance driveway?

MR ANDERSON:   It is, your Honour.  You have to put that out of your mind.

GLEESON CJ:   Could we have a look at the entrance driveway?

MR ANDERSON:   There are two photographs there which show some people sitting on the – they were taken some time after the accident.  They are not relevant to the time of‑ ‑ ‑

KIRBY J:   It is not the grandest entrance driveway that ‑ ‑ ‑

MR ANDERSON:   It is not some of the ones your Honour posed to me, no.

GLEESON CJ:   If leave to appeal were granted, could I recommend that you did not leave that photograph behind.

MR ANDERSON:   I take your Honour’s point.  So the answer to your Honour is no, you cannot be influenced by the fact that he is a quadriplegic, you cannot be influenced likewise by the fact that by a quirk‑ ‑ ‑

KIRBY J:   But we take into account in granting special leave that there is a lot of money involved, that lots of people are involved.  Why does not one take into account that it is extremely important for this citizen of our country?

MR ANDERSON:   It is, and I do not attempt to walk away, that if the Court’s view is if one citizen’s rights in relation to a potentially very large claim are the issue, then if that is the Court’s view on public importance, I cannot dissuade you.  I would not seek to.

CALLINAN J:   The interests of justice are also relevant to the individual litigant.

MR ANDERSON:   Yes, quite.

CALLINAN J:   One of the statutory criteria.

MR ANDERSON:   I can only finish by putting to the Court that his Honour in reasoning was saying this contemplated something on an entrance driveway.  This was not on an entrance driveway.  It was across something, which your Honours have now seen, at the end of a street and it was not what he thought the legislature meant.  That of course is a point of construction.

CALLINAN J:   The point that Justice Kirby makes, what is an entrance driveway, might depend very, very much upon where it is.  You take a

property in the outback.  An entrance driveway there would be totally different from an entrance driveway in Pymble in Sydney.

MR ANDERSON:   It would certainly vary, your Honour.  I cannot put anything against that proposition either.

GLEESON CJ:   Thank you, Mr Anderson.  Yes, Mr Walsh.

MR WALSH:   If the Court pleases, can I raise just one question of the legislation?  Your Honour Justice Kirby raised the question of the effect on this young man.  Yes, there is an effect under section 9 but it is an effect that is limited to the operation of sections 13 and 17 which is pain and suffering, in effect, as we commonly refer to it, and loss of any capacity.  But what is still available to a plaintiff who is disentitled because he has driven without a licence, as in this case, are section 18, “Medical and rehabilitation expenses”; section 18A, “Reimbursement of attendant care expenses for permanently impaired person”; section 19, “Alterations to house”.

KIRBY J:   Yes, he acknowledges all that in his written submissions.  He says he gets something but it is peanuts in comparison to what he would get if he could demonstrate that he was injured on an entrance driveway.

MR WALSH:    The point I make, though, is that the structure of the legislation is such that it is intended that there be at least some benefits paid, even in the event where there is meant to be a penalty because somebody has broken the law, for instance, driving under the influence of alcohol or the like, or driving without a licence.  So, that is the penalty that is provided.

KIRBY J:   Licence seems a very odd criterion.  People can forget to get licensed.  I mean, I could understand uninsurance or non-registration, but licence.

MR WALSH:    We accept that is unusual, your Honour, but the fact of the matter is that it is there.  But the point we make at the end of the day, in relation to the issue for this particular plaintiff, is that in most cases involving quadriplegics or paraplegics, the bulk of the claim, of course, is with respect to the care attendant costs.

GLEESON CJ:   Do you have an argument to put on the entrance driveway point?

MR WALSH:    Yes, I do.  I turn to that.  If one can picture, by means of the photograph that you have now seen, going in an easterly direction along Verburg Court, it comes to an end.  At one stage there was a complete barrier at the end of the road.  That was opened to allow some people to gain access.  It is vacant Crown land.  The barrier that was constructed by the Council was constructed on the road itself, the dedicated road.  In other words, west of the boundary of the vacant Crown land and to some short distance to the west.

CALLINAN J:   You would need to be a surveyor to know that though, would you not, and to identify the pegs?

MR WALSH:    But the question is that in legislation of this kind there are hard and fast divisions.  For example, the legislation applies to a road, it will not apply to the front garden of the house adjacent to the footpath of the road and one of the arguments that was put, and no doubt accepted by his Honour Justice Mildren in the case at first instance, was that if it is correct to say that in the circumstances of this case, that section of land immediately east of the pole, before you get to the vacant Crown land, is an entrance driveway, that means that footpaths over which there is an entrance to a home is also logically an entrance driveway.

That means that a person who is walking along a footpath will continually be emerging from the position of being on a road, for the purposes of the Act; to being on an entrance driveway for the purposes of the Act; as that person walks down the footpath, and that is the logical consequence.

KIRBY J:   Can I ask you this?  Does that mean that if one gives a wide ambit to enter a driveway, all drives going somewhere to some entrance, that one thereby puts out of the protection of the Act the large number of people who otherwise would be entitled to claim its benefits?

MR WALSH:    Absolutely, your Honour, and what has happened here is that four judges of the State - of the Northern Territory Supreme Court have interpreted this local statute, which has no operation beyond the Northern Territory, and which has now been removed, in any event, from the legislation because it was simply deleted in 1992, four judges have interpreted a local statute as meaning that this is not an entrance driveway.  An entrance driveway is typically once you have gone beyond the extent of the road then the driveway which is an entrance leading to something ‑ ‑ ‑

KIRBY J:   That local statute point does not run since Justice Callinan came.  He pointed out that if you take that to its extreme, we only deal with Federal legislation and we are the appellate court of the whole nation.

MR WALSH:    I suppose the point I am making is that it is not a special leave point.

GLEESON CJ:   Yes, but let us hear you on the construction of the statute.

MR WALSH:    On the construction of the statute, if I may just take you to that area of land just to the east of the pole and before you get to the boundary with the vacant Crown land.  So, there is a small area of land over which this person travelled before he then hit the barrier.  That small section of land is said to be either a public road, as indeed the Full Court found it was, and that is the end of the matter – a public street, rather, because that is where the occurrence occurred.  Or, alternatively, if it is to be not an exception to the fact that it is a public street, it must be an entrance driveway.

KIRBY J:   To the extent that we enlarge entrance driveways, we reduce the coverage of the Act.  That is the thing that concerns me.

MR WALSH:    Absolutely, your Honour, and the difficulty with that interpretation, as was obviously accepted by Justice Mildren, is the illogicality in the context of the interpretation of this Act and the words “entrance driveway”, of a person walking along a footpath and continually moving in and out of entrance driveways, and that would emasculate the operation of the Act to a significant degree and in an illogical way.  Therefore, his Honour Justice Mildren concluded, ultimately, that on a proper interpretation of the words, in the context of the statute, that it could not be an entrance driveway.  He then looked to the question of whether it was open to or used by the public and, of course, found for the plaintiff in that context and that was rejected by the Full Court.

KIRBY J:   Does the statute still provide for public road and entrance driveway exceptions or not?

MR WALSH:    No, entrance driveways ‑ ‑ ‑

KIRBY J:   That has gone.

MR WALSH:    Deleted in 1992.

KIRBY J:   So, even if you are injured now on an entrance driveway of your home you are covered by the Act.

MR WALSH:    Well, you would still need to be on a public street.

KIRBY J:   I see.

MR WALSH:    It has just simply removed, as an exemption, in the event that there might otherwise be a public street or road.  So, it really is, as I say, a question of focusing carefully on where the occurrence occurred for the purposes of the section, recognising that the occurrence is still on the road, then recognising the fact that in order to be an exemption from the operation of the section, you would need to classify that section of road as an entrance driveway.  Once you did that, you would have this problem that I have articulated and was obviously articulated to Justice Mildren, and obviously powerfully influenced him in terms of the proper interpretation of the statute.

But what this applicant seeks to do, is to ask this Court to ventilate an issue of statutory construction in the context that we have already put and in the context where four Supreme Court judges who are well versed in the operation of the provisions of the Motor Accidents (Compensation) Act, have come to the conclusion that, “Look, no, that would lead to an absurd illogicality”, and that would be improper and Parliament could not have intended to do so.  At the end of the day, if one is to look at the illogicality in the Act, it is the illogicality that is provided by the Act itself in terms of this unfortunate young man, namely, because of the fact that he has this limitation on his right to damages presented by the statute because he was not driving with a licence.  That is the real illogicality, the very wording of the statute itself.  But that must be followed of course. 

So, in our respectful submission, this was correctly found by the Full Court, albeit, your Honour Justice Callinan, the throw away line about the construction appears to be illogical.  But putting aside that for one moment, when one looks at the reasoning process of Justice Mildren and the fact that it clearly could not possibly be an entrance driveway, that really is neither here nor there, particularly in the context of the fact that the decision was demonstrably correct, we say.

In effect, the alternative, if the Full Court is correct that there was a road beyond it, it is one road to another road.  It is not an entrance driveway.  It is one road and another road.  So, if the Court pleases, for those reasons, we say that it is not an entrance driveway.  I should mention that the applicant did not argue this as a special leave point.  True, it is, that it is in the actual grounds for appeal.  It is not articulated as a special leave point and no argument was put in the argument that was put to this Court in support of the special leave questions.  That is not an answer, of course, and we do not make much point of it but merely illustrate ‑ ‑ ‑

KIRBY J:   It was embraced with enthusiasm when it was put to counsel.

MR WALSH:    Yes, your Honour, and, of course, sometimes things are less important to others and more important to the Court at a later time and we accept that, but that might explain why it was that we were not armed with suitable photographs and other such material that might have been able to assist readily to overcome the problem and clearly identify the fallacy in the argument that has been put.

GLEESON CJ:   Thank you, Mr Walsh.  Yes, Mr Nosworthy.

MR NOSWORTHY:   The Court’s focus in dealing with counsel for the respondents is related to the statutory scheme and its meaning of “public street” and how does that affect the Motor Accidents (Compensation) Act legislation.  At tab 12 on page 6 of the Motor Vehicles Act you will find the definition of “public street”.  That definition excludes an entrance driveway from the notion of a public street under the Motor Vehicles Act.

KIRBY J:   Yes, but Mr Nosworthy, all public streets lead somewhere, or generally they do, and if one gives a large ambit to entrance driveways just because a public street is leading to some other place and is in that sense an entrance to it, then you are cutting down the ambit of the operation of the Act, and that cannot have been the purpose of the legislature.

MR NOSWORTHY:   Well, whatever else the ‑ ‑ ‑

KIRBY J:   I mean, it would be a terrible thing if everybody who went on that bush track called a public street were not covered by the benefits of the Act.  Leave aside the special circumstances of your client’s case, that would be a very narrow construction of the Act.

MR NOSWORTHY:   Whatever else the barrier was where the collision occurred, and whatever else it might have been to the east or to the west of it, at the point of the occurrence of the incident it was an entrance driveway.  That has the consequence of excluding it from the definition of public street and, thus, if your Honours will go to tab 11, the definition of an “accident” within the Motor Accidents (Compensation) Act legislation, on page 1 of the Act in section 4 an accident is defined by reference to a public street.  So that, if you exclude the entrance driveway from the public street definition, you also exclude it from the ambit of the Motor Accidents (Compensation) Act.

Your Honour Justice Kirby referred to the possibility that one might forget to get a licence.  The important thing to appreciate, if I may, in this case, is that the plaintiff was 14.  He was not able to get a licence because of his youth ‑ ‑ ‑

KIRBY J:   The point I was making is that being licensed or unlicensed has nothing to do with the cause of accidents.

MR NOSWORTHY:   Certainly, your Honour, but we are, to some extent, in this appeal dealing with an appeal against the law of unintended consequences.  It certainly was not the intention to bar a plaintiff of this kind because he was too young to get a licence.  In the course of arguing the case, my friend Mr Anderson referred to findings of fact.  The position was, and he said that he made a finding of fact in relation to entrance driveway, I would point out that he also made findings of fact that there was no real use of the track, page 22 line 10, page 26 line 25.

The fact, as your Honours pointed out, that there was incompetent maintenance by the first respondent of its pipe and the gateway has never been appealed against and challenged.  They have merely sought to hide behind the technical defence.  Section 35A(b) of the Judiciary Act permits this Court to have regard to the consequences to an individual as a basis upon which special leave might be granted. 

Finally, and whether this is properly in reply to Mr Anderson, or not, I am not sure, but I will put it anyway, the consequence of this and the cases cited may once more arguably raise the question of contributory negligence as a complete defence in the sense that if it be argued that because a motor vehicle has some slight part in a case where there is overwhelming negligence of another kind that forces a party into one particular regime, is certainly an issue that this Court ought to be concerned with.  Thank you, your Honours.

GLEESON CJ:   We will adjourn for a short time to consider the course we will take in this matter.

AT 12.07 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.10 PM:

GLEESON CJ:   Without necessarily adopting all aspects of the process of reasoning in the Supreme Court of the Northern Territory, the Court by majority is of the view that there are insufficient prospects of success of an appeal in this matter to warrant a grant of special leave.  The application is refused.

Can you resist an order for costs, Mr Nosworthy?

MR NOSWORTHY:   No, your Honour.

GLEESON CJ:   The applicant must pay the respondent’s costs of the application.

KIRBY J:   May I ask, in relation to the costs order, I assume there would be additional costs by counsel coming to Canberra.  Is this not a matter which could, and ought to, have been dealt with by the video link to the economy of the plaintiff in this case?

MR WALSH:   In our case, your Honour, it was because there was another matter also in which I was involved.  There is a sharing of costs because of that so the plaintiff would not be visited with all the costs anyway with respect to my attendance here.  But I would like to think that something can be said on behalf of the position of the plaintiff to the Northern Territory, at least, and I will convey that issue to them.

GLEESON CJ:   You would think it would be a matter a taxing officer would take into account.

MR WALSH:   Probably so, your Honour.

MR ANDERSON:   My position is the same, if the Court pleases.  I am here on another matter and there is a sharing of costs arrangement there.  But I agree it is appropriate it is taxed and we will be sensible about it.

GLEESON CJ:   Thank you, Mr Anderson.

Call the matter of Miles, please.

AT 12.11 PM THE MATTER WAS CONCLUDED