Miller v Miller

[2010] HCATrans 130

[2010] HCATrans 130

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P50 of 2009

B e t w e e n -

DANELLE EVELYN MILLER

Applicant

and

MAURIN ASHTON MILLER

Respondent

Application for special leave to appeal

GUMMOW J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 28 MAY 2010, AT 10.58 AM

Copyright in the High Court of Australia

MR B.W. WALKER, QC:   May it please the Court, I appear with my learned friend, MR J.A. THOMSON for the applicant.  (instructed by Kott Gunning Lawyers)

MR M.H. ZILKO, SC:   May it please the Court, I appear on behalf of the respondent.  (instructed by Lavan Legal – Perth)

GUMMOW J:   Mr Zilko, we would like to hear from you first.

MR ZILKO:   Your Honour, the respondent opposes the grant on three broad grounds.  The first is that it has insufficient prospects of success; second, that the point is not of general importance because of the legislative changes that have occurred over the last few years; and, thirdly, that it is an unsuitable vehicle because of particular matters that occurred in the preparation for the trial and the arrangements made between the parties.

In terms of the prospects of success it follows and is generally indistinguishable, your Honours, from the circumstances of other cases of the same kind and the same legal principles as applied in those other cases are applicable here.  Nothing distinguishes it, for example, from the fact situation in Gala v Preston or Smith v Jenkins or, indeed, the Western Australian Court of Appeal decision in Kickett.

Although, Gala v Preston, the plurality dealt with certain matters in terms of their judgment by reference to issues of proximity, it is clear that putting that aside the decision of the court and, indeed, the three other judges who form part of the unanimous view of the court was that in terms of principle there was no reason why the plaintiff should succeed in that matter.  This case, is as I say, your Honours, indistinguishable.  It involved the same type of offence.  It involved the same circumstances ‑ ‑ ‑

GUMMOW J:   We are not worried about whether it is a particular fact.

MR ZILKO:   But the legal principles to which the facts are applied in each of those three cases were identical.  The legal principles are unimpeachable in terms of the application of the law to the facts of that kind.  I accept your Honour’s observation but there is nothing about the law which requires any reconsideration, particularly in light of the fact that the legislature has taken a hand in the last 10 years in changing the law in respect ‑ ‑ ‑

GUMMOW J:   It is not a question of the legislature.  There are a number of legislatures in this country. 

MR ZILKO:   Well, of all the States, your Honour, only Western Australia remains without legislation of that kind.  The other States have all made changes to the rules as they apply to ‑ ‑ ‑

GUMMOW J:   Why should we consign Western Australians to legal oblivion?  I do not understand that submission.

MR ZILKO:   Well, it does go to the question of whether there is a matter of any public importance because it certainly does not apply to any other State and the Court of Appeal’s decision, of course is ‑ ‑ ‑

GUMMOW J:   We live in a federal system.

MR ZILKO:   Insofar as the common law still applies, the Court of Appeal’s application of the principles is, in my respectful submission, consistent entirely with authority as applied over many, many years, starting with a long line of cases going back 30 or 40 years.

KIEFEL J:   Are you suggesting that there is some public policy basis for the previous decisions and therefore, all damage suffered in the course of a joint illegal enterprise results in unrecoverable damages?

MR ZILKO:   No, your Honour, I am not because in fact many of the cases indicate that depending on the seriousness of the crime or the lack of seriousness of the crime that will not be the case.  Of course, we have referred to those in our submissions as have our friends.

GUMMOW J:   Now, are you submitting that the common law in some way should respond or reflect the statutory changes that have been made in some Australian jurisdictions?

MR ZILKO:   It seems to me, with respect, your Honour, that the common law is in fact, the precursor.

GUMMOW J:   If so, that would be a question of public importance, would it not?

MR ZILKO:   I think it is the opposite.  It seems to me that the legislature in those States, all States except Western Australia have followed the common law.  They have made a determination, legislatively, that there will not be a right to damages in respect of injury sustained in the pursuit of a common criminal enterprise.  Now, as I say only Western Australia has not done it.

KIEFEL J:   Well, that is to say - you say the cases the way you read them is that there is an underlying public policy element?

MR ZILKO:   I do not like to go there, your Honour.  It seems to me that they have taken a fairly ‑ ‑ ‑

KIEFEL J:   If there is a question about whether there is, again, it is a basis for special leave, is it not?

MR ZILKO:   Well, it is not so much that, it is more to the point of saying that they have taken the fairly doctrinal approach that there is no basis on which one can determine the appropriate standard of care in the circumstance where there is injury sustained in the commission of a serious criminal offence.  So, it is not public policy matter as such.  I think one of the judges in Gala v Preston was a Justice ‑ ‑ ‑

KIEFEL J:   It might be a policy of the law response in the way you are referring to it.

MR ZILKO:   It is not that that I am objecting to the application on the grounds of.  It seems to me, with respect, that there was no departure in the Court of Appeal’s decision from the established legal principles.  Justice Buss has set them out fairly accurately in terms of their application over many years.

KIEFEL J:   What do you say to the applicant’s contentions that the denial of relief in the previous cases might be explained by reference to the hazards inherent in the execution of the particular illegal enterprise and that the defence of joint illegal enterprise might be seen to operate analogously to the voluntary assumption of risk in such cases?

MR ZILKO:   I cannot argue with that.  That seems to me to be a fairly reasonable conclusion but that simply adds to the reason why there should not be leave because, in this case, your Honours ‑ ‑ ‑

KIEFEL J:   But that leaves it to the circumstances of each case, does it not, for the common law to determine whether or not a duty was owed?

MR ZILKO:   Yes, but in this case and it takes me to my other point and that is it is not a suitable vehicle because prior to the trial of this matter the parties agreed that they would not, that the defendant would not ventilate issues of contributory negligence and volenti.  That was by agreement and we have referred to that in our submissions as have our friends.  So, the case went to trial on an artificial basis, went to trial simply on the question of duty of care by reference to the authorities.  That meant, in turn, that the Court of Appeal could only determine the case on the confined and artificial basis that it went to trial. 

Your Honours will have seen that - paragraph 19 of the reasons of Justice Buss on page 48 of the application book sets out the terms of that agreement – the parties “confined the issues in dispute”.  That would mean that if it came before this Court for a full hearing, it would be done in a rather artificial vacuum because issues of volenti and contributory negligence could not be properly ventilated having regard to the fact that the parties by their agreement did not go to trial on those issues, notwithstanding that they were pleaded in full and ‑ ‑ ‑

KIEFEL J:   I do not think the applicant was saying that the issue of volenti needs to be raised, rather its argument for the existence of a duty of care might be seen to depend upon the view of the cases which operate in that way.

MR ZILKO:   I apprehend there to be some suggestion, your Honour, but this would be seen, at least by the applicant, to be a case in which volenti could be ventilated. 

KIEFEL J:   Paragraph 24 is where the defence is said to operate analogously to voluntary assumption of risk.

MR ZILKO:   Yes.

KIEFEL J:   But that is not to say that it sought to maintain it in this case.

MR ZILKO:   It nevertheless remains the case, however, that you have a situation in which an agreement was made which confined the issue to one in which only the principles which we are now arguing about were put before the court in the trial and again before the Court of Appeal.  Questions of volenti and contributory negligence were not ventilated by deliberate agreement between the parties.  It seems, with respect, that it would be hard to then have a full hearing of these matters, if indeed there was no opportunity for either the respondent at trial or at ‑ ‑ ‑

KIEFEL J:   But the facts are not in dispute, are they?  It is the legal outcome?

MR ZILKO:   Yes, but the legal outcome will involve ventilation of issues of volenti in contributory negligence by reason of the facts as found.  If those matters are excluded from the argument, it must, with respect, be a case in which ultimately the court’s decision will be confined only to this matter.  It will not be of application across the board, even to Western Australia as a whole.

KIEFEL J:   But if there is a question about whether Gala v Preston or Imbree v McNeilly provide a complete answer to these cases then there is question of general importance?

MR ZILKO:   To whom?  In light of the legislature, we would say not.

KIEFEL J:   No, at common law.

MR ZILKO:   It seems to me, with respect your Honour, that the application of those or the consideration of those cases by reference to general principle again is confined or is going to be fettered by the matters that were decided by the parties prior to the trial.  It cannot be otherwise because in those matters these issues were all generally ventilated and all dovetail into each other so that there was no single matter that was heard independently of the others.  One influenced the other in terms of the outcome of those cases.  One only has to see that from the way in which the court decided each of the cases. 

GUMMOW J:   But this is the way in which the parties conducted the litigation.

MR ZILKO:   That is right.  They take the consequences ‑ ‑ ‑

GUMMOW J:   Well, if the product of that agreement is an application for special leave to this Court, so be it.

MR ZILKO:   Well, your Honour, except this, that the court’s determination of whether there is a special leave point is whether it is firstly of general importance and it may not be, if, in fact, the parties have confined the way in which they ran their case and agreed, for better or worse, that they be bound by that confinement, and (b) if the court wants to revisit Gala v Preston as may be the case, this is not the right vehicle if indeed you have that sort of an arrangement between the parties which is impacted on what is available for full ventilation.  This is not the case.

GUMMOW J:   We will hear from Mr Walker, I think.  What do you say about the last point, Mr Walker, namely, the unsuitability of this litigation?

MR WALKER:   Your Honours, it is, with great respect, as Justice Gummow has put it.  The defendant had put in issue in the pleadings negligence.  The defendant was sent to gaol for culpably causing death by the manner of his driving as well as other offences.  He abandoned the pleading of negligence.  That does not make this peculiar.  It means that a plea that had no prospect was abandoned.  There was also a plea of volens.  It was abandoned.  It has not been put on a shelf to be reached back for, it has been abandoned.  It has the same status as the plea of not negligent. 

KIEFEL J:   You are not seeking to - it is not sought to be agitated again in any event?

MR WALKER:   Absolutely not.  In other words, this is a case the clarity of the issues in which rendered a superior vehicle, not confused at all.  The same is true with contributory negligence.  That has not been abandoned.  It has been settled.  Again that enhances this case as a vehicle for considering the question whether there is any liability in which there ought to be contributory negligence as an assessment.  It has been agreed at 50 per cent if there is any verdict. 

So the point about these other issues, as if they are hovering off the coast ready to come in and make mischief if there is some argument in this Court concerning the matter of general importance, has no substance as a matter of fact at all.  The parties have organised their affairs, starting from the wholly unrealistic pleading with which the defendant commenced, that is not negligent, through to agreeing contributory negligence in a way that is very common, notwithstanding how pleadings commence, and dropping volens, which as your Honours would appreciate is pleaded far more often than ever argued nowadays.  In our submission, the case is entirely unexceptional in that regard.  The issues have been focused and reduced.  That enhances its status as a vehicle to test a point which, as the Court of Appeal recognised, is open and important.

GUMMOW J:   What do you say about, I think what might have been foreshadowed against you, that if you want to look again at the common law you would have to take account of the statutory changes that have been made and the complaint that you would be trying to, in effect, go beyond the policy expressed in these differently expressed statutes in Australia these days?

MR WALKER:   I think it can be said there are three answers.  The first is that what State legislatures and Territory legislatures do from time to time can change from time to time.  The second is they have not been done entirely consistently in the particular provisions in question.

GUMMOW J:   Yes, I think in Esso where we looked at this sort of question we said you would want to see some consistency in the statute pattern.

MR WALKER:   May I highlight, first of all, a matter that is consistent and then a matter which is strikingly inconsistent.  The matter that is consistent is that formulation, I will use the New South Wales form, section 54 of the Civil Liability Act:

(1)A court is not to award damages in respect of liability to which this Part applies if the court is satisfied -

and then the nexus with crime to which I will come back.  Section 51 tells you what the part applies to.  It is civil liability of any kind for personal injury damages.  Now, that is a form of words that explicitly premises the operation of this preclusion of an award of damages upon the existence of liability.  The part applies to civil liability for personal injury damages.  You need to know what the common law prescribes in relation to liability before you come to the particular preclusion of damages by particular nexus with crime.

That nexus with crime that is currently prescribed in the common form in those jurisdictions which have enacted this legislation is by no means simply a codification or distillation of the common law.  As their Honours in the Court of Appeal, particularly Justice McLure, note in any event this is a difficult distillation for reasons which have been observed, for example, by Justice McHugh’s comment in Joslyn concerning possibly needing to revisit Gala v Preston.

GUMMOW J:   Can I ask you, Mr Walker, what assistance you would be seeking to get from that Canadian decision in Hall v Hebert in 1992?

MR WALKER:   Your Honour asks what assistance, perhaps the most significant thing about the way their Lordships proceeded was to put to one side a general notion based on an overriding policy of the law of which ex turpi causa is an aspect and in particular holding that just because the plaintiff was a wrongdoer does not necessarily mean he can have no remedy at law for harm done to him.  Now, it may be that this country’s common law has already reached that situation, for example, with respect to offences against safety legislation.  It may be we have already reached that although it may be that those cases turn on the fact that the law in question is based on a need to protect the malefactor themselves. 

KIEFEL J:   Does Hall v Hebert hold that it is better to approach the matter by degrees of responsibility of the individual - apportionment?

MR WALKER:   In our submission, that which makes the case very important is that it provides an opportunity for the court to place on a stable and principled ground what is, after all, a very important aspect of conduct in societies which have many regulations of conduct, ordinary conduct, sanctioned by criminal penalty.  All driving is of that kind.  We submit that the proper approach to be taken from a refinement and development of what can be seen from the older proximity enunciations of the point transformed through a prism of vulnerability in particular, is to ask about the proper scope of the exempted risk by reference first to the crime, which is being attributed to the plaintiff, and second, to the question whether it is true that the common law could not posit the proper standard of conduct.

In our submission, in a case like the present, there is a great deal to be said for the approach illustrated by Mr Justice Jacobs in the Jackson Case, namely that when one has as the crime as here the use of a motor vehicle without owner’s consent, deemed to be stealing, there is the world of difference, as a matter of the commonsense which will factually inform the notion of exempted risk, between your ordinary use of the motor vehicle, hours, days, weeks, even months after you first stole it, and the rampage you may be on in a so‑called joyride or escape from the scene of another crime.

Now, in our submission, on the findings of the trial judge in this case, this is an ideal vehicle to present the question whether or not there is at common law liability when the stealing to which she was party, the use without consent to which she was party, that is, does not have as any of its elements of crime, let alone of her complicity in it, the notion that he would be intoxicated, that is an irrelevance to have introduced; the notion the car was overloaded, that is an irrelevance to have introduced or the notion of any pursuit.  There was no pursuit.

For those reasons and bearing in mind that he, of course, committed other offences, can I come back to the statutory question Justice Gummow asked me about.  The first point is the statute in its common form in the jurisdictions that have enacted it, and they could amend it of course and disparately, presupposes liability.  The court when applying these provisions is going to have to understand whether there is liability before they look to whether there is an award of damages.  That is the first thing.

The second thing is, one of the differences is that in New South Wales, for example, the most populous jurisdiction, the preclusion by section 54(1) does not apply if the conduct of the defendant that caused the injury constitutes an offence, whether or not serious.  In this case it means, of course, were the common law claim of my client to have been heard under the regime in New South Wales, plainly enough one cannot say the conduct which is criminal contributes materially to the injury but did not cause it. 

If it contributed materially, of course, the common form provision precludes awards of damage but in New South Wales it is said but that does not apply if that was an offence and we know from his conviction in this case, it renders the case an ideal vehicle for the matter.  There are no doubts about the matter.  He has been sent to gaol, not only for causing death but also for injury, including the injury suffered by my client.  So, for those

reasons, the notion that there is a statute which renders either moot in this case or moot in any other case ‑ ‑ ‑

GUMMOW J:   We will hear more about this if we granted special leave, Mr Walker.  If we were to grant special leave we would have to, or we should be given some footing of the United States treatment of this question.  They seem to fix upon what Justice Brandeis said in Olmstead 277 US 438 at 484 which might lend some support to what Justice Kiefel was putting to you, I think. There will be a grant of special leave in this matter. Is one day adequate?

MR WALKER:   Yes, your Honour.

GUMMOW J:   It will be listed as an appeal for one day. 

We will adjourn to establish the video link to Adelaide.

AT 11.20 AM THE MATTER WAS CONCLUDED