Meyers v The Commissioner for Social Housing & Anor

[2020] HCATrans 12

[2020] HCATrans 012

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Canberra  No C11 of 2019

B e t w e e n -

DANIEL PATRICK MEYERS

Applicant

and

THE COMMISSIONER FOR SOCIAL HOUSING

First Respondent

AUSTRALIAN CAPITAL TERRITORY

Second Respondent

Application for special leave to appeal

KIEFEL CJ
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 14 FEBRUARY 2020, AT 10.36 AM

Copyright in the High Court of Australia

MR J.E. MACONACHIE, QC:   In that matter, your Honours, I appear with MR J.A.G. McCOMISH and MR P.A. TIERNEY, for the applicant.  (instructed by Ken Cush & Associates)

MS V.A. THOMAS:   May it please the Court, I appear with MR D.J. REYNOLDS, for the respondents.  (instructed by ACT Government Solicitor)

KIEFEL CJ:   Yes, Mr Maconachie.

MR MACONACHIE:   Your Honours, this case engages both questions of law of public importance and is a case involving the interests of the administration of justice, both generally and in the particular case, and thereby requires the attention of this Court.  The applicant was a public housing tenant and he was savagely mauled by two pit bull terriers within a complex occupied by the Commissioner and managed by officers of the Territory.  The essential and central issues in the case are that whether or not, on the undisputed facts ‑ no factual issue left in the case ‑ a common law duty of care was owed by one or both of the respondents, and secondly, what is the proper construction of section 112 of the Wrongs Act, if I can call it that.

EDELMAN J:   You also have hurdles to surmount of breach and causation.

MR MACONACHIE:   We respectfully submit no, and that is because once the duty is identified, as it ought to have been identified, as a scope which required the removal of the dogs, the breach question and the causation question are a straightforward exercise, we submit.

EDELMAN J:   So the duty is not a duty to take reasonable care, it is a duty to achieve an outcome.

MR MACHONACHIE:   Your Honours, it is a duty to take reasonable care, as all duties of like kind are, but the duty to take reasonable care in this case necessarily required the removal of the dogs.

KIEFEL CJ:   Which is to say, it required that there be no danger.

MR MACONACHIE:   It required that reasonable care be taken to ‑ ‑ ‑

KIEFEL CJ:   Well, I do not see how you can have it both ways.

MR MACONACHIE:   I do not ‑ ‑ ‑

KIEFEL CJ:   If the dogs are not there, the danger is removed.

MR MACONACHIE:   Yes, indeed.

KIEFEL CJ:   What is reasonable care is almost strict liability.

MR MACONACHIE:   The reasonable steps to remove the dogs was what was required, and that was not something that occurred.

KIEFEL CJ:   Well, there are not reasonable steps to remove.  It is removal or not.  On your argument, it has to be, does it not?

MR MACONACHIE:   Well, we would say no, your Honour, the duty of care is one to take reasonable care in all of the circumstances of the case, but the nature of the powers that were given and the nature of the risk that ‑ ‑ ‑

KIEFEL CJ:   If your duty just contemplates removal, are you not eliding duty and breach?

MR MACONACHIE:   I did not hear what your Honour said?

KIEFEL CJ:   Are you not eliding running together concepts of duty and breach?

MR MACONACHIE:   No, I am not, your Honour.  Duty frequently informs the issue of breach and cause ‑ ‑ ‑

KIEFEL CJ:   It does, but breach does not usually follow as a matter of course from duty.

MR MACONACHIE:   It does not usually but it can do, and we submit it does where there is a power, plainly intended, as Justice McHugh said in Graham Barclay Oysters – and I will take you to that in a moment – intended to be exercised in circumstances requiring the exercise of the duty, and section 59 of the Domestic Animals Act gave power to seize dogs which had harassed or attacked.

KIEFEL CJ:   So do you say it is a failure to exercise the power that constitutes the breach?

MR MACONACHIE:   It is a failure to properly and efficiently exercise the statutory power in just the same way as this Court found by majority was the case in Pyrenees v Day.  It is indistinguishable, in our respectful submission.

EDELMAN J:   Well, even if one were to formulate the duty in terms that you expressed it, as a duty to take reasonable care to remove the dogs ‑ ‑ ‑

MR MACONACHIE:   Yes.

EDELMAN J:   ‑ ‑ ‑ you have the finding at 228 and 229 of the decision below that both at trial and on appeal there has not really been any attempt to identify exactly what it is that the Commissioner or the Housing ACT officers could or should have done to ensure the removal of the dogs.

MR MACONACHIE:   Well, I was not at trial, but I was in the Court of Appeal and it was squarely put, according to my recollection – I know my learned friend submits otherwise – that there was an ineffective attempt to exercise the statutory powers.  And, in particular, on 16 February, when Mr Ritzen, the dog catcher, if I can so describe him, went to the premises with his catching pole, with Ms Diehm, who was the manager for the Housing people, and police, because Mr Ritzen and Ms Diehm were concerned for their own safety.

KIEFEL CJ:   Well, that is an acknowledgment of the risk, but what more do you say should have been done?  The dogs were not there, no one was there.

MR MACONACHIE:   No, they were not.

KIEFEL CJ:   So what do you say ‑ what was pleaded that should have been done that was not done?

MR MACONACHIE:   The pleadings were criticised in the Court of Appeal as being at a level of generality, and I have to accept that that was so.  But it was squarely put in the statement of claim at paragraph 39 – and I apologise that your Honours do not have a copy of the statement of claim ‑ Justice Gummow was always keen to say, “Never go to court without your pleadings”.  The pleading at paragraph 39, point 3 in the statement of claim, asserted against the first and the second defendant, a failure to remove the dogs from the complex.  At 39, point 9, a failure to manage, supervise or control the dogs adequately or at all whilst they remained at the complex, and 39, point 13, failed to exercise its statutory powers reasonably.

KIEFEL CJ:   Well, the failure to remove when you cannot find the dogs, what does that mean?  Realistically, what does this mean?

MR MACONACHIE:   All that required, your Honour ‑ ‑ ‑ 

KIEFEL CJ:   Was to find the dogs. 

MR MACONACHIE:   ‑ ‑ ‑ with the knowledge that the defendants – respondents – in this Court had, of an attack upon a man in early January, 8 January, which was capable of causing him very serious injury, if not death. 

KIEFEL CJ:   I think you have got knowledge of risk. 

MR MACONACHIE:   Indeed you have, your Honour. 

KIEFEL CJ:   What we are not clear about is what steps you say should have been taken.

MR MACONACHIE:   Well, all that was required, either of Mr Ritzen, the dog catcher, or Ms Diehm, the manager, was to say to the plaintiff, or Ms Manley who was one of the other tenants, when the dogs are here, call me, and we will attend.  It was not as though ‑ ‑ ‑ 

EDELMAN J:  Was that case put at trial?

MR MACONACHIE:   I believe it was.  I am reminded that Mr Meyers made a call to Ms Diehm the day before, 16 February, to give notice that the dogs were present and that is why they attended on the sixteenth.  The fact that the dogs were not there meant no more that when the dogs were present a call could be made again and attendance would follow.  It did not take them very long at all, your Honours, once this man was nearly killed to attend, seize the dogs, exercising the powers that they had.  Our complaint is that they did not exercise the relevant powers that they had efficiently ‑ as demonstrated immediately after the event ‑ that it was possible to be done. 

EDELMAN J:  Well, it is not your complaint, as I understand your submission, is not that they did not exercise their powers, it is that they did not say to the tenant, or one of the tenants, please call us when the dogs are back, because without the call one could not expect them to wait outside the building. 

MR MACONACHIE:   I understand that, your Honour.  Of course not, of course not.  Calls had been made, and not effective because when they arrived the dogs had gone.  But the point is when this horrific attack occurred, they attended, they engaged with the dogs, removed them and cured the problem. 

Can I take your Honours to page 21 of the application book, paragraph 106 and 107 of the judgement below?  There is reference there in 106 to Ms Diehm having a conversation with Mr Ritzen, a discussion of “the powers available to him” and the like.  On:

The same day ‑

which I think is 16 February, I am looking at paragraph 105:

Mr Meyers, called Ms Diehm requesting “instant eviction” . . . He was upset and angry.  He said that “he would take matters into his own hands”.  Ms Diehm encouraged him not to do so and explained to him that Housing ACT was working on the matter.  Mr Meyers said that “he was going to consumer affairs and the media . . . Ms Diehm notified a Regional Manager . . . Alexandra Groves, of what she had been told by Mr Meyers.

There was no ‑ not an essential element in the negligence upon which we rely, that there was a failure to tell Ms Diehm or Mr Ritzen what to do, that was being done anyway.  And the complaint we make is that there was actual reliance by Mr Meyers on statements made by Ms Diehm that they would look after the matter and he did not need to concern himself with taking matters into his own hands, and they failed to do that which was available to be done, either under the Housing Act by giving relevant notices, which they did, that was ineffective, under the Domestic Animals Act, notices were given which were ineffective, and they had power under section 59, aided by section 130 of that Act, to seize the dogs and relieve this vulnerable gentleman of the danger to which he was not only exposed but which came to pass.

KIEFEL CJ:   Mr Maconachie, on the basis that, if the applicant for special leave was able to establish duty and breach and causation, you still have section 112 of the Civil Law (Wrongs) Act to face.

MR MACONACHIE:   Yes, indeed, and we adopt the construction given by the presiding judge in the court below, Justice Elkaim, which is the same construction as was given to the cognate section, section 44 under the Civil Liability Act by Justice Whealey in the case of Kuehne, I think it is pronounced, referred to in our written submission, and that is an important matter upon which this Court has not passed, and we say that as well is a special leave point.  The Whealey‑Elkaim construction is that standing is enough, the construction favoured by the majority in the Court of Appeal, and by Master Connolly, as he then was, in the case relied on by them, is that you have to demonstrate that you would have succeeded in a common ‑ ‑ ‑

KIEFEL CJ:   Justice Elkaim was in dissent on this point, was he not?

MR MACONACHIE:   He was, and a powerful dissent, we would submit, given that it is‑ ‑ ‑

KIEFEL CJ:   Well, how do you say the majority are wrong?

MR MACONACHIE:   They are wrong because they conclude that it is necessary for the applicant, the plaintiff in the Court at first instance, the appellant in the Court of Appeal, to establish that not only did he have standing to obtain a public law remedy, but he would have been successful, which is far too high a bar, we say.  The proper construction of the section requires no more than he demonstrate that he has standing and he was person who was individually interested in the remedy and was, plainly, somebody who had standing to move for it.

KIEFEL CJ:   In the appeal below was section 112 raised with respect to both respondents or was it just the Territory?

MR MACONACHIE:   Just the Territory, I am reminded.  I do not have a clear recollection myself, but I think that is right, it was the Territory.  I am reminded that, yes, it was wrong to depart from Bankstown CityCouncil v Zraika 94 NSWLR 159 at 175 to 179 where it was held by the New South Wales Court of Appeal that the section only engages pure nonfeasance cases. This was put as a misfeasance case. But even if it was a pure nonfeasance case, there was actual reliance – for the reasons I gave a few minutes ago – actual reliance on what Ms Diehm said to the plaintiff on 16 February. We say that we rely on the approach taken by Justice Elkaim ‑ ‑ ‑

KIEFEL CJ:   Yes, you said that.

MR MACONACHIE:   ‑ ‑ ‑ Justice Whealey.

KIEFEL CJ:   I see the light, Mr Maconachie.

MR MACONACHIE:   Indeed, I do, your Honours. 

MS THOMAS:   May it please the Court, if I can start with the ‑ ‑ ‑

KIEFEL CJ:   Just give us a moment please.

MS THOMAS:   Sorry, your Honour.

KIEFEL CJ:   We do not need to hear from you, thank you, Ms Thomas.

The Court is of the view that there are insufficient prospects of success to warrant the grant of special leave.  Special leave is refused.

MR MACONACHIE:   May it please the Court. 

KIEFEL CJ:   Yes, thank you.

AT 10.54 AM THE MATTER WAS CONCLUDED