Neindorf v Junkovic

[2005] HCATrans 430

[2005] HCATrans 430

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A65 of 2004

B e t w e e n -

SANDRA NEINDORF

Applicant

and

MARTA JUNKOVIC

Respondent

Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 17 JUNE 2005, AT 11.05 AM

Copyright in the High Court of Australia

MR R.J. WHITINGTON QC:   May it please the Court, I appear with my learned friend, MR K.G. NICHOLSON, for the applicant.  (instructed by Thomson Playford Lawyers)

MR S. WALSH, QC:   May it please the Court, I appear with my learned friend, MR A. ROSSI, appear for the respondent.  (instructed by Moody Rossi & Co)

GUMMOW J:   I think we would be assisted to hear first from Mr Walsh.

MR WHITINGTON:   If your Honour pleases.

MR WALSH:   If the Court pleases, the issue that arises in this case, or at least the issue that is best viewed as the most important issue that might arise, is the question of whether the scope of the duty of care as opposed to the standard of duty of care ought to be treated as the same or to be treated separately and whether there is a difference between the judges of the Supreme Court and, for that matter, in other courts.  But that issue, in our respectful submission, ignores the fact that different cases will attract a different approach depending upon the relationship between the parties.

For example, the duty of a council to road users may be perceived in a different way to the duty of a council to pedestrians, thus of course we see the cases that flow from the decision of this Court in Brodie as opposed to the cases that flow from the decision of this Court in Ghantous.  Further, the duty of homeowners to social visitors may be looked at differently to the duty of homeowners to customers.  Next, the duty of owners of commercial premises may be considered in a different light, depending on whether it is a duty to a customer on the one hand or a non-commercial visitor or, alternatively, to contractors such as was the position in this case in Thompson v Woolworths which is on my learned friend’s list of authorities.  The present case is a case of a commercial visitor to domestic premises and, in our respectful submission, is a case on its own facts ‑ ‑ ‑

GUMMOW J:   For a garage sale.

CALLINAN J:   Mr Walsh, one knows if one goes to an ordinary suburban household that it is likely that the householder may have done some of the concreting himself and he probably does the gardening himself, or his wife or somebody else does the gardening.  You are not going to get the same conditions as you would get if go to a David Jones store.

MR WALSH:    That is so, your Honour, but ‑ ‑ ‑

CALLINAN J:   You start talking about precautions, precautions for one occasion perhaps in 3,000 days, once in every 10 years.

MR WALSH:    That is so, your Honour, but that is why it is important to take into account the distinction between the duty of a home owner qua a visitor in the ordinary sense, which attracts of course your Honour’s point, and the duty of the domestic owner of premises qua a person who visits for a commercial purpose at the invitation of the home owner.  In that event of course the very issues that arose in Webb’s Case and in other cases where the particular facts assist in determining the duty of care, scope or standard, as it may be, having regard to the fact that there may be distractions, for example, inadvertence, which your Honour Justice Callinan referred to at least briefly in Ghantous and Brodie, and they then help mark the distinction between the case that your Honour rightly puts to us and the case at Bar.

Furthermore, with respect, your Honours, even if there was an important issue Australia‑wide, for example, in relation to the point that is raised, this is not a suitable vehicle.  As his Honour Justice Gray observed, the background to a consideration of liability in this case is section 17C of the then Wrongs Act and now the Civil Liability Act.

CALLINAN J:   How does that differ from the statement of the common law, that section?  What does it add or subtract?

MR WALSH:    I am sorry, I missed that, your Honour.

CALLINAN J:   What does that section add or subtract from the common law?

MR WALSH:    It purports to focus on such issues as, for example, the state of the premises as being relevant to the standard of care and ‑ ‑ ‑

CALLINAN J:   But that is part of the common law.

MR WALSH:    Yes, indeed, it is, and what one ‑ ‑ ‑

CALLINAN J:   Well, what does the section add or subtract from the common law?

MR WALSH:    It adds a focus to an analysis that must be undertaken in the context of an analysis of the standard of care.  If on the other hand one says no, we can avoid all of that by superimposing against the background of that section an analysis that the platform of scope of duty of care, then Parliament’s intention is frustrated.  But more importantly, or just as importantly, the Civil Liability Act in 2004 has created even greater inroads into the question of the proper analysis.  For example, it deals with the question now of notice and that notice will not necessarily be relevant, and it deals with the question of the issue in this case in the context of a defence of volens, as it was previously known.  Can I take you just briefly ‑ ‑ ‑

CALLINAN J:   Why do you say Chief Justice Doyle, who dissented, was wrong in paragraphs 32 to 35 on page 42?

MR WALSH:    For the reasons that his Honour Justice Gray explained when dealing with the same matters.  But can I put this to your Honours.  If that is the case, if that is the issue in this case, then it is really a question of whether on appeal principles there was some justification for his Honour Justice Besanko at first instance on appeal interfering with the Magistrate’s decision and, on the other hand, looking at the decision of the majority as against what his Honour Chief Justice Doyle said which amounts to merely an opinion about whether ‑ ‑ ‑

CALLINAN J:   Have you read Fox v Percy in this Court?

MR WALSH:   I understand what your Honour ‑ ‑ ‑

CALLINAN J:   The facts are not immune from examination.

MR WALSH:    Of course not.  We respect that position, your Honour, but if intuitively one cannot say that this decision was wrong, rather that you might disagree with it, then that does not justify interference.  Now, here we have a case of a person who was distracted at a critical point of time and it is not correct to say that there was no danger because Chief Justice Doyle accepted that there was.  So that if there is a danger, let us look at the case of Webb, for example. 

That was a classic case where there is momentary inadvertence that is caused by what you would expect.  Here there is momentary inadvertence caused by the very action on the part of the homeowner.  So that what this case should be viewed as is a classic case of one of those circumstances where, as in the commercial case or otherwise, people are distracted and they will be inadvertent and you should not treat them the same as, for example, people who are walking along footpaths in a council area.

So the points that we raise, with respect, in relation to this issue are (1) that there is no important issue; (2) that it comes down to a question of was one judge right or wrong in relation to the exercise of the appeal function; and (3) against the background that this is not a suitable vehicle because of the current Civil Liability Act and of course at the time section 17C of the Wrongs Act.  If we are wrong with respect to all of that, then we do ask this Court to impose a condition which is offered, as we

understand it, that the costs of the special leave application and the costs of the appeal should be costs in favour of the respondent in any event.

CALLINAN J:   Why?

MR WALSH:   If the Court pleases, they are our submissions.

CALLINAN J:   But why should that other order be made?  Why should an unorthodox order be made?

MR WALSH:   Because it has been offered and this is a case of a ‑ ‑ ‑

CALLINAN J:   I am sorry, I did not hear that.  It has been offered, right.

MR WALSH:    It has been offered, your Honour.

GUMMOW J:   Yes, Mr Whitington, where do we find the offer respecting costs?

MR WHITINGTON:   It is at the end of our primary submissions which the Court will see at page 86, paragraph 50 at line 40.

GUMMOW J:   Thank you.  Now, what do you say as to the significance of the 2004 legislation as bypassing the interest of this case?

MR WHITINGTON:   We accept that that changes the legal landscape and it made do so considerably, although that is to be worked out.  Our position about that is nonetheless there is still a considerable run‑off period.  Those provisions apply to causes of action wholly arising after 1 May 2004, so there will be a number of causes of action which have wholly arisen before then which are still to be determined.

GUMMOW J:   Yes.

MR WHITINGTON:   There will also be accidents which have occurred before that date where damage only is sustained after that date.  In addition, in respect of causes of action arising before 1 May 2004, in South Australia there is a three‑year limitations of action bar, but that is subject to a very broad and generous extension provision, and as well people under disability such as minors can bring actions out of time.  So for all of those reasons there still remains a very considerable exposure of householders, many of whom will be uninsured, to claims of this type and, indeed, this very decision might foster or ferment a number of such claims in respect of the pre‑Civil Liability Act amendment period.

GUMMOW J:   We understand that.  Now, the notice of appeal does not seem to touch at any stage upon the operation of Part 1B of the Wrongs Act 1936.  It may be that on one view of it it is restating the common law, but there may be other views open.

MR WHITINGTON:   We, I think, in drafting the notice of appeal took the view that section 17C, as it then was, did simply restate the common law considerations.

GUMMOW J:   Well, all I am saying to you is that if you got a grant of leave I think you had better look at your notice of appeal again.

MR WHITINGTON:   Yes.  I am indebted to your Honours and we would wish to consider that and amend in light of that intimation if so advised.

GUMMOW J:   And what about the disturbance of costs orders below?  We note what you have said at page 86 as to costs in this Court.

MR WHITINGTON:   We are in the Court’s hands as to that.  Obviously my client does in fact have a broader interest in this matter than simply this case.  If that were determinative of leave, I am sure that we would be able to make a concession in that regard.

GUMMOW J:   Yes.  Where do we see the costs order of the Full Court?

CALLINAN J:   Page 70.

MR WHITINGTON:   Page 70, if the Court pleases.

GUMMOW J:   Yes.  Well, can you get instructions as to the imposition of a further condition that there be no disturbance of the cost order of the Full Court?

MR WHITINGTON:   Yes, if the Court pleases.

GUMMOW J:   Do you need time to get that?

MR WHITINGTON:   Only a very little time.

GUMMOW J:   Well, the matter can stand in the list if you wish.

MR WHITINGTON:   Yes, thank you, if the Court pleases.

GUMMOW J:   Very well.  Indicate to the Court when you have those instructions.

CALLINAN J:   And just bear in mind, Mr Whitington, what Justice Gummow said to you about the possible need to amend your notice of appeal.

MR WHITINGTON:   Yes.  Can I take that on board for later consideration or does the Court wish me to ‑ ‑ ‑

GUMMOW J:   Yes.  You do not have to draft it on the spot.

MR WHITINGTON:   No.  Thank you.

GUMMOW J:   So application No 3 will stand in the list for the moment.

AT 11.20 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 11.55 AM:

GUMMOW J:   Yes, Mr Whitington.

MR WHITINGTON:   May it please the Court, I have instructions to offer the following concession in respect of costs:  first of all, in the event that leave is granted and the appeal is allowed, the defendant, that is the applicant, would not seek to recover from the plaintiff any of the defendant’s costs incurred below; secondly, the applicant undertakes to pay the respondent’s costs of the special leave application; and thirdly, the applicant confirms that we will pay the respondent’s costs of the appeal in any event.

GUMMOW J:   Thank you.

CALLINAN J:   What about the orders for costs against you in the courts below, Mr Whitington?  There are orders I think, are there not?

MR WHITINGTON:   Yes, there is an amount I think totalling about $21,000 comprising costs of the trial and of the two appeals.

CALLINAN J:   Well, does your undertaking go so far as to agree that there will be no attempt made to disturb them, that they should stand?

MR WHITINGTON:   We have not gone that far and my instructions do not go that far.  If the Court thinks that is necessary, the Court might make that a condition of a grant of leave and we would then have to, if advised, file the appropriate undertaking.  But at the moment we have not conceded that we should pay those costs of the plaintiff in any event.

GUMMOW J:   Yes, the Court is minded to require that undertaking, that is to say the undertaking as already outlined by you, supplemented as indicated by Justice Callinan.

MR WHITINGTON:   If the Court pleases.

GUMMOW J:   Upon condition that that undertaking be provided, there will be a grant of special leave in this matter.

MR WHITINGTON:   If the Court pleases.

GUMMOW J:   It would be a half‑day case I would think.  Is there anything else?

MR WHITINGTON:   No, thank you, your Honours.

AT 11.57 AM THE MATTER WAS CONCLUDED