Mt Isa City Council v Desmond; Desmond v McIntyre

[1990] HCATrans 297

m .1,, AUSTRALIA I!' --.>).)~~~~/....~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B39 of 1990

B e t w e e n -

MT ISA CITY COUNCIL

Applicant

and

WAYNE JOSEPH DESMOND

Respondent

Office of the Registry

Brisbane No B40 of 1990

B e t w e e n -

WAYNE JOSEPH DESMOND

Applicant

and

JOHN McGILLIVRAY McINTYRE,

ANTHONY O'BRIEN LOUGHNAN,

RICHARD GRENVILLE BARRETT,
DAVID HARRY JAMES, JOHN

Desmond 1 7/12/90

WILLIAMS, HARRY MIKELSONS

and LEONARD ERIC MOORE

Respondents

Applications for special leave

to appeal

MASON CJ
TOOHEY J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA ON FRIDAY, 7 DECEMBER 1990, AT 11.04 PM

Copyright in the High Court of Australia

MR R.R. DOUGLAS, QC: If the Court pleases, I appear with my

learned friend, MR P.C. STEPHENS, for the applicant

in the first matter. (instructed by Quinlan,

Miller & Treston)

MR C.J.L. BRABAZON, QC: If the Court pleases, I appear with

my learned friend, MR D.J. McGILL, for the

respondent in the first matter and for the

applicant in the second matter.

(instructed by Barry & Nilson)

MR J. GRIFFIN, QC:  May it please the Court, I appear with

my learned friend, MR M.W. FORDE, for the

respondent in the second matter.

(instructed by Murrell Stephenson)

MASON CJ:  The Registrar has been informed by the

solicitors for the third defendant in the action

that they are not a party to the application, but

that they have been served with the joint

application book by the applicant. They have

further informed the Registrar they do not wish to

be heard on the substantive issue. They have a

costs order in their favour and that if the

applicant's application is successful, they wish to

reserve their rights to appear at any appeal.

MR DOUGLAS: Yes, Your Honour.

MASON CJ: Yes.
MR DOUGLAS:	Your Honours, this application arises out of a

case which concerns a motor cyclist, who came to

grief on an intersection in Mt Isa, where - - -

MASON CJ:  We are familiar with the facts and with the

history of the matter on its way through the court.

MR DOUGLAS:  Thank you, Your Honours. Might I just make one

point so that it is clear to you, that the

subdivision was one which was done, if you like, in

the bush, in the sense that there was no connecting

roadway between it at one end and Marian Street,

Desmond 7/12/90

which is the main road, and that there was an

unformed road between the completed subdivision and

the main road, which was subsequently, as part of
the overall development, covered with a thin

bitumen strip leaving, as were described in the

papers, "the gravel shoulders to either side".

Your Honours, in our submission, put shortly,

the Full Court has misapplied the test in

Buckle v Bayswater Road (1936) 57 CLR 259. The way

Mr Justice Connolly in the Full Court expressed the

test was put by him succinctly at page 93 of the

record, where he said:

This is not a simple case of a highway

authority failing to form a road. It is, on

the contrary, a case in which a local

authority has permitted subdivision on the

basis of a road layout which inevitably had

the dangerous features which materialised in

this case unless it either sealed, curbed and

channelled the eastern part of Park Avenue or

took appropriate steps by warning the public

and cleaning the road as early as practicable

to guard against the hazard.

The eastern part of Park Avenue, to which

His Honour is referring, is the part which was

always going to be left unsealed. It was not part

of the subdivision. It was not part of the

roadworks, the subject of the design by the

engineers and a construction by the constructing

authority. It was, however, given the treatment of

a twelve foot strip of bitumen between the

subdivision and the main road.

Your Honours, the Chief Justice did not

express himself as succinctly as

Mr Justice Connolly, but his reasons are to the

same effect, beginning at page 71 of the record and

particularly pages 75 to 78. I will not deal with

those. In essence they reach the same conclusion

as His Honour Mr Justice Connolly.

Mr Justice Kelly, in his judgment, dealt only with

the question of the liability of the engineers to

the plaintiff.

In our submission, the correct approach was

that of the trial judge, and might we take you to

pages 52 and 53 of the record where His Honour

Mr Justice Ryan expressed the test, we say

correctly, this way, having found the facts with

which Your Honours are familiar.	At the bottom of
page 52:

The question which must be asked in my

opinion is whether it was negligent for the

Desmond 7/12/90

was constructed. In the language used by Dixon J. it is the "improper nature of the original act of the road authority" which is the foundation of the complaint against it.	Council to build a road in the way in which it the road in the way it did it seems to me that
it would not be liable for any injuries
attributable to a failure to remove gravel
from the road. I have given my reasons for
concluding that it was not negligent. The
case therefore is one where there was a
failure to maintain a road surface which -

McHUGH J:  Just stopping there, Justice Ryan was of the

view that there was no negligence in design because

there would be supplementary clearing and

maintenance continually carried out.

MR DOUGLAS:  I can hardly hear Your Honour actually.

McHUGH J:  I am sorry. Mr Justice Ryan found that there was

no negligence in the design of the road because he

was of the opinion that there would be a subsequent

or supplementary clearing and maintenance

continually carried out.

MR DOUGLAS:  That is so. That was done, Your Honour. It

was done, on the evidence, by two gangs who were

permanently employed on that task. One of the

gangs did other tasks during different times of the

year but what happened after rain, and what must be

borne in mind, is the storm which produced the

amount of gravel on this intersection was what is

called "a one in 50 storm", that is one which you

would expect only every 50 years. So you would

expect there to be a lot of gravel and the evidence

was that it took as long as it took to get around

Mt Isa with many hundreds of intersections all with the same problem and that this intersection had not

been reached by the time that the accident

occurred.

McHUGH J: That only means that there was foreseeable risk

of injury arising from the design as it operated

which could have been avoided either by a clean-up

gang, or by a better design.

MR DOUGLAS: Well, Your Honour, with respect, there is

nothing new in that, if one goes to the older

cases, and particularly if one goes to Buckle

itself. The graphic illustration of a similar case

is that of Moul v Croydon Corporation,

119 Law Times 318, which is in our list of

authorities. In that case, a highway was built

using wood paving which after heavy rain swelled

and bulged causing an obstruction which resulted in

Desmond 7/12/90

a bus colliding with an electric standard and

injuries being suffered by the plaintiff.

The fact that the wooden blocks would swell

and bulge was known to the corporation, the

constructing authority, at the time they were put

in and notwithstanding the case the Court of Appeal

held that in such circumstances it was mere

nonfeasance and not actionable.	There are many
similar cases.

One could take a case of a road authority

which constructs a highway through a rainforest

knowing that trees may from time to time in a

cyclone fall on the roadway.	One may take other
examples where such a thing could occur.	In this

case our submission is the council did not bring

anything artificial on to the surface of the

roadway. What came on to it was something which

occurred naturally during rainfall. Indeed, a

great majority of the gravel itself came from the

roadway on the eastern side of Park Avenue between

Marian Street and the subdivision.

MASON CJ: That does not meet the point of negligent design

and construction.

MR DOUGLAS:  We submit it does, with respect, because if one

goes back again to Mills' case that, on the same

test, must have been negligent design and

construction.	The constructing authority there
knew that.	The material which they were using for

the road would swell in certain circumstances and

would cause an obstruction. They did nothing about

it. The Court of Appeal there thought that was

mere nonfeasance.

McHUGH J: Well, what do you say about the proposition that

Buckle's case only applies the

misfeasance/nonfeasance dichotomy in relation to

the exercise of highway powers and not in relation

to drainage powers, and this was a case of

drainage?

MR DOUGLAS: Well, Your Honour, to answer the question, it

is the debate, and always has been the debate

whether it applies only to highway authorities and

not to drainage authorities. The judges themselves

in that case reached different conclusions.

In any event, Your Honour, this case can be

truly said to be where the drainage was merely

ancillary to the construction of the roadway. It

was, in truth then, I think, Your Honours,

throughout the case dealt with as being a highway

construction where the drainage was incidental.

Desmond	7/12/90
McHUGH J:	I thought Mr Justice Macrossan tended to the view

that this case was not within Buckle.

MR DOUGLAS:  Your Honour, he expressed that view, though we

would take what he said as not being central to his

decision. In any event, Your Honour, what Buckle

means in respect of that is not clear, we submit.

The leading judgment in Buckle was that of

Mr Justice Dixon, as he then was.

With respect to Buckle, might we say there has

been some debate in recent times in Australia as to whether that decision has been impinged upon by the decision of this Court in Heyman's case, and might
we perhaps turn to that and submit that it has been

dealt with on at least three occasions recently so

far as we know.

The Full Court of the Federal Court in

McDonough, 73 ALR 148, determined that Heyman's

case -

has not expressly or impliedly abrogated the

defence of non-feasance.

Mr Justice Ryan took the same view in this case.

It has also been discussed in Hill v The

Commissioner for Main Roads in the New South Wales

Supreme Court - and these references are all at

page 110 of the record - and in French v District

Council of Ridley, in the South Australian Supreme

Court, where the debate has been whether Heyman's

case, as I said, has had the effect of abrogating

the defence of nonfeasance.

MASON CJ:	Has anyone held that it has?
MR DOUGLAS:	No, nobody has held that it has so far as we

can find out. No one has yet suggested - I expect

because of the strength of Buckle's case,

Your Honours, that the general duty of care which

is imposed by Heyman's case - no judge has -

applies to, if you like, impliedly overrule

Buckle's case.

MASON CJ: It is possible that Heyman may provide a

development which in due course could undermine

Buckle, but at the moment there is no decision of

this Court or of any other court that I know of

that actually undermines Buckle as a decision.

MR DOUGLAS:  No, Your Honour, that is so. But we would

submit this may be, of course, the case which is

the proper vehicle to determine whether, in fact,

Heyman's case has impinged upon or undermined - - -

MASON CJ: Well, you are not asking us to do, are you?

Desmond	6	7/12/90
MR DOUGLAS:	No, Your Honour.	It would not be fruitful for

our exercise. Your Honours, in our submission, put

as best we can, the Full Court has misapplied the

test in Buckle - - -

McHUGH J: That is not a special leave ground, is it?

MR DOUGLAS: Well, it is in the sense that if they had

misconstrued the law and if that case gets some

notoriety in the country, Your Honour, it is a

special leave point; if, in fact, they have

misapplied the test and that misapplication gets

some strength behind it elsewhere, it makes it a

special leave point.

Your Honours will be keen to see, with

respect, that Buckle's case is maintained as

authority for the propositions it put, the effect
of the Full Court's decision is to undermine it to

some extent if the test has been applied incorrectly. They are our submissions,

Your Honour.

MASON CJ:  Thank you, Mr Douglas. We need not trouble you,

Mr Brabazon. In this application, the Court is of

opinion that the decision of the Full Court of the

Supreme Court is not attended with sufficient doubt

to justify the grant of special leave to appeal. The application is therefore refused. I take it

you apply for costs, Mr Brabazon?

MR BRABAZON:	Yes, Your Honour.
MASON CJ:	I take it that is not opposed, Mr Douglas, so the

application is refused with costs.

Now, Mr Brabazon, in the circumstances, you do

not proceed with your application.

MR BRABAZON:  That is so. We have no further interest,

Your Honour. All we would wish to say on the

assumption that our learned friends for the

engineers might ask for costs against us, which I

suppose we cannot oppose, we simply wish a sort of

Bullock order to recover all our costs because it

was a step we had to take to protect the plaintiff in the event that the Council may have got special

leave.

MASON CJ: Yes.

MR BRABAZON:  So we do not pursue the application, and our

only concern is with costs.

MASON CJ: Yes, well we had better hear what your opponent,

Mr Griffin, has to say. Mr Griffin, you do not

Desmond 7 7/12/90

oppose the refusal of the application? What do you

say about costs?

MR GRIFFIN:  We ask for costs, if the Court pleases.

MASON CJ: very well.

MR DOUGLAS:  Could I be heard on the order for costs,

please, Your Honours, in that application?

MASON CJ: Yes.

MR DOUGLAS:  We were not parties to it and we would submit

that it was purely an application based upon a

finding of fact put before the trial judge and the facts to find that the engineers were negligent.

That sort of application, before this Court, was always doomed to failure and whether we succeeded

on ours or not would not affect that result. It

had to be done, I expect, in the outcome that if we

got special leave and succeeded in the High Court,

Mr Brabazon, to protect his interest, had to pursue

the engineer on the off chance that the High Court
might overturn a finding of fact. But it otherwise
did not concern us and a Bullock order or similar

order should not be made which would compel us to

pay those costs.

MASON CJ:  Yes. The Court will refuse each application and

in each application the applicant will pay the

respondent's costs.

AT 11.20 THE MATTER WAS ADJOURNED SINE DIE

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