Meshlawn Pty Ltd & Anor v State of Queensland & Anor

[2010] HCATrans 300

[2010] HCATrans 300

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B50 of 2010

B e t w e e n -

MESHLAWN PTY LTD (ACN 010 947 458)

First Applicant

SURFERS PARADISE ROCK AND ROLL CAFÉ PTY LTD

Second Applicant

and

STATE OF QUEENSLAND

First Respondent

HELEN RINGROSE AS CEO OF THE LIQUOR LICENSING DIV.

Second Respondent

Application for special leave to appeal

HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 12 NOVEMBER 2010, AT 12.29 PM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR D.P. DE JERSEY, for the applicants.  (instructed by Hopgood Ganim Lawyers)

MR W. SOFRONOFF, QC, Solicitor‑General of the State of Queensland:   May it please the Court, I appear with my learned friend, MR A.M. WILLIAMS, for the respondents.  (instructed by Crown Solicitor (Qld))

HAYNE J:   Yes, Mr Walker.

MR WALKER:   Your Honours, may I take you conveniently to the provision found in application book page 86 - when I say “the provision”, I mean section 121A - simply to note that in its paragraph (3)(b) there is a reference to 121(5)(g) which you see set out in the middle of that page so as to draw to your Honours’ attention the matters that are necessary to be considered in relation to a grant. 

We are talking here with a grant of a renewal and your Honours will have seen, both in the written argument and in the reasons for judgment in the courts below, reference to the clear fact that different procedures involving what might be called a less deliberate inviting of public participation is called for upon a renewal.  It is not a cessation of a public interest element altogether, understanding that expression in its widest sense, but it is certainly public interest collected and considered in a far less, far‑reaching manner on a renewal. 

Now, the importance, in our submission, of the reasoning, various as it plainly is, of the Court of Appeal in this case from the point of view of precedent, common law precedent, is to be found in the attempts made with two different outcomes to decide the critical question whether these statutory provisions were such as to give rise to an obligation summarised as a duty of care.

HAYNE J:   Accepting that there is some disparity in reasoning, is it the position that neither at first instance nor on appeal, to put it positively, both at first instance and on appeal, it has been found that if there is a duty of care that duty was not breached?

MR WALKER:   What your Honour has said is, with respect, correct.

HAYNE J:   Why then would we take it because the orders would stand unless you were to upset those concurrent findings of fact?

MR WALKER:   No, quite.  Exactly so, your Honour.  We have to succeed in, as it were, taking the shell of a majority finding of duty, pumping in a different blend of whipped cream for the content ‑ ‑ ‑

HAYNE J:   I would not refer to whipping it up, Mr Walker.

MR WALKER:   It has to be a very different content because there is this, we submit, interesting question as to whether Wednesbury supplies the scope or content of the duty.  Then, of course, we have to succeed on breach and causation.  We have all of that.  That is really only to say that if you have failed on more than just the prior question of duty in any negligence claim coming to this Court, you have to show that you will get a complete cause of action.  It is not a seminar, we entirely accept that.

What do we say then about the question of breach?  We submit that the facts in this case which are documentary, the testimony would not be the subject of argument against the conclusions as to the reliability or truth telling of the witnesses.  The documentary evidence shows pretty convincingly, we submit, that though she may have forgotten by the time March 2004 came around, it is clear on the record that in December 2003 it was explicitly brought to the attention of the decision‑maker that matters needed to be substantiated which could appropriately link, not a technical word but it will do, the concerns described then and later as cogent and reasonable about what were apparently less than attractive environments in the street in the vicinity of my client’s and other competitors’ premises.

I refer to other competitors because if you are talking about breach, that is applying an appropriately reasonable standard of care to the consideration of a matter, there is the obvious contrast in this case between the similar kind of generalised allegations in the main, which did not prevent permits being renewed for competitors so the link became ‑ ‑ ‑

KIEFEL J:   May I interrupt your discussion of breach to ask you what the content of the duty of care is said to be?

MR WALKER:   In our submission, what it is not is what the learned President found.  In other words, in our submission, that was a novel and unsatisfactory conclusion, namely to find that the common law duty of care, which is to take reasonable care, translates into a requirement for a plaintiff to succeed that it be shown that the decision‑maker has made a decision that no reasonable decision‑maker could have made with the usual, as her Honour calls it up by reference to Wednesbury, with the usual extremity of that test. 

Scope or content, in our submission, at its most general is simply the common law formulation condescending to the facts of this case.  It did require – on the facts of this case it did require looking to see whether substantiation previously explicitly called for and noted as a reason not to refuse an extension, the lack of it was previously a ground for renewing, notwithstanding concerns about the amenity.  The scope or content in this case was to take reasonable steps to ascertain whether there had been that substantiation supplied.

Now, that comes down in further answer to Justice Kiefel but also to your Honour Justice Hayne.  In relation to breach, then, perforce, we come down to the question as to whether breach can be seen in the Chief Executive contenting herself with a reading and understanding of what are called the briefing notes, those which officers prepare so as to describe in summary, and I stress in summary, purportedly, that which is also supplied to the Chief Executive.  Now, against us, both on the merits and for special leave, we accept, is the fact that there must be an end of a senior bureaucrat’s paperwork.  That much may be accepted.

KIEFEL J:   There are quite a few decisions in the Federal Court dealing - in judicial review context, dealing with how it is a matter of course that busy ministers at least rely upon and it depends very much on the content of the briefing note that they receive.

MR WALKER:   Yes, there are quite a few, meaning many and in this Court of course there is Peko‑Wallsend.  Now, of course, that is in a context where a trade‑off is immediately created, namely, yes, even with a decision personally to decide you do not have to go out and do the literal or metaphorical footwork yourself.  You are thereby likely, in administrative law, to be fixed with such defects or vices as those advising you or summarising for you, have themselves committed.

HAYNE J:   But the nub of your negligence case is this decision‑maker should have gone beyond her briefing papers ‑ ‑ ‑

MR WALKER:   No, no.

HAYNE J:   No.

MR WALKER:   Just simply into her briefing papers.  The briefing note - it is a tendentious description but it is where our case would tend - is a cover sheet.  Now, it is more than a sheet, it is seven pages, but this is not the whole of, this is not like the ministerial and nor is this decision‑maker a minister.

HAYNE J:   You get the file with the seven pages on top and she should have gone into the whole file.

MR WALKER:   Yes, because there is a – she knew, though she may have forgotten - that does not help her with her negligence case - she knew, she had been told, in the iterative process that these frequent renewals require, you do not reinvent the history, you look at what the file says.  She knew that substantiation of what I am calling the link was that which appeared to be critical in relation to the propriety of a decision not to renew these premises.

KIEFEL J:   Well, you will be showing that the briefing note was somehow inconsistent with the material on which it was based or that it omitted a significant factor?

MR WALKER:   Your Honour, I think probably the former would be a fair way, yes, there is no avoiding that because, as is found – by concurrent findings as Justice Hayne has pointed out, the briefing note were it appropriate to stay there, effectively communicated to the Chief Executive that the substantiation which had been looked for unsuccessfully in the past had now been supplied. 

Now, given the record before this Court today, I should content myself with putting it this way.  No one has ever set out to suggest that substantiation of the kind called for just the previous December is in fact to be found importing the link in question in the fashion that apparently was looked for last December, come the March bundle of papers.

Now, I am bound to point out, as your Honours will have seen from findings at first instance and in the Court of Appeal, that there are assertions, perhaps that is unfair, opinions might be another way of putting it, expressed by those preparing the material for the advice of the Chief Executive that there was attribution to my client’s premises of some of the untoward phenomena.  Yes, I accept that.  That is why I am bound to answer Justice Kiefel’s question by saying, yes, on breach, we would be saying, and also on causation, obviously, we would be saying that the briefing notes either gilded the lily or made assertions which were not safe to rely upon bearing in mind the material to support it.

It is for those reasons, in our submission, that of course we have to take on the task of showing that the scope or content of the duty at common law in these circumstances did not stop at that which in administrative law will not invalidate a decision but lumbers the decision‑maker as to validity of decision making with whatever vices or defects are in the bundle of paper.

If there is to be any cross‑fertilisation from administrative law, à la the President with the Wednesbury scope or the content of the duty, then, in our submission, one would also inquire and this Court, in our submission, could most usefully decide, what is, if anything, a trade‑off when it is said that you can, with reasonable care, not scrutinise or check that which you know to be or you should have remembered was, a critical question upon which, as to your decision, a person, a named person, with obvious economic interests would be utterly vulnerable.

It is, in our submission, that it is for those reasons that, of course, we have to plead - we have to succeed on breach for this to be other than a moot question but we should be able to succeed on breach in the manner I have just suggested.

Your Honours know that there is another point which goes to the duty question, again the Bench divided.  Now, we do not wish to be ungrateful, it divided in our favour but, in our submission, in relation to the special leave question this case presents as an appropriate vehicle to raise matters which are probably peculiar to statutory decision making and the important and by no means completely settled matter in this Court of common law duties of care by statutory decision‑makers.

KIEFEL J:   You mean the questions raised in Stuart v Kirkland-Veenstra?

MR WALKER:   No, not merely those but those are the questions raised, yes, your Honours.  The particular aspect I have is what might be called the rights of appeal point, now, appeal understood in the specific sense.  The parallel course that could be taken was successfully taken by us.  Now, of course, our claim is precisely because that parallel course contains none of the alleviation of loss which is the concern of the common law when a person vulnerable to a careless exercise of power has suffered a loss. 

In our submission, the so‑called right of appeal in this case, with its prompt activation, its complete success on our part, shows why there ought to be no answer to the existence of a duty of care by its very existence.  It leaves us out of pocket depending upon views which would not be an issue in this Court, either hundreds of thousands or more.

HAYNE J:   Well, it engages considerations of the kind I looked at in my dissenting reasons in Crimmins.

MR WALKER:   Yes.  In our submission, they are of very considerable importance and they are – would be part and parcel of the fundamental approach which can be stated generally in a way that could not be altered by the outcome of this case but which would, in our submission, benefit from the particular application to the concrete situation of this case and that is, what does the statutory scheme give rise to positively in terms of a relationship to ground a common law duty of care and what does it indicate as to reasons why it should not exist?  Now, I have touched on rights of

appeal.  I do not need to say more about that.  With great respect, the learned President, Mr Justice Fryberg took an appropriate course in that regard. 

Could I mention section 49 which you will find conveniently on page 93 of the application book.  Here was part of the express terms, not something overall in terms of a scheme, but one of the express terms of this statute actually uses the word “negligence” in a way not all that common in such provisions so as to permit textually a reading that says this is a statute where Parliament has said you have to be without negligence in order to have the protective effect, in order to have the statutory immunity.

In our submission that is an indication of matters which play a role in this case that does not find any ready counterpart in previous decisions in this Court on duties of care in statutory schemes, another reason, in our submission, why this would be a useful occasion and vehicle for the Court to consider the matter.

Finally, in relation to these matters, fundamentally important, but by no means completely settled as to their detail, in the common law question of duties of care imposed on statutory decision‑makers I am referring here to what might be called, to choose one of the phrases used, the “conflicting interests” point, be it a Sullivan v Moody point or a Stuart point. 

In our submission, there is, with great respect, a great deal to be said for the approach of the majority which we would, of course, embrace, namely that there is, fortunately for citizens and those affected by statutory decision making, nothing conflicting between a balancing exercise being done - of course it is a balancing exercise as many private and public decision‑making exercises are – but there is nothing conflicting between that balancing nature and doing it carefully or, to put it another way, why would not a balancing exercise in decision making be enhanced rather than detracted from, enhanced rather than complicated by being done carefully with respect to scrutinising the material said to justify a drastic step against a person liable to be affected.

It is for those reasons, in our submission, that this case does provide an appropriate vehicle.  It provides an occasion for this Court further to consider a matter of self‑evidently abiding importance, namely whether there are not only administrative law remedies, sans compensation, for maladministration but also common law, so as to provide a compensatory remedy.  May it please the Court.

HAYNE J:   Thank you, Mr Walker.  We will not trouble you, Mr Solicitor.

It was held at first instance and on appeal that if the defendant owed the plaintiff a duty of care in this case, that duty was not breached.  There is no reason to doubt the correctness of that conclusion.  It follows that this is not a suitable case in which to explore whether the defendant owed the plaintiff a relevant duty of care.  The actual orders made by the Court of Appeal are not attended by doubt.  Special leave to appeal is refused.

MR SOFRONOFF:   We would ask for costs, your Honour.

HAYNE J:   Can you resist that, Mr Walker?

MR WALKER:   No, your Honour.

HAYNE J:   With costs.

The Court will adjourn to reconstitute.

AT 12.49 PM THE MATTER WAS CONCLUDED