Northern Territory of Australia & Ors v Mengel

[1994] HCATrans 473

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Darwin No D5 of 1994

B e t w e e n -

THE NORTHERN TERRITORY OF

AUSTRALIA and ORS

Appellants

and

ARTHUR JOHN MENGEL and ORS

Respondents

MASON CJ
BRENNAN J
DEANE J
DAWSON J
TOOHEY J

Mengel(2) 182 6/9/94

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 6 SEPTEMBER 1994, AT 10.19 AM

(Continued from 12/8/94)

Copyright in the High Court of Australia

MASON CJ:	Mr Jackson.
MR JACKSON:	Your Honours, the Court will have the

document which we undertook to provide at the

5           conclusion of the last hearing.

MASON CJ:  Yes, we have that.

MR JACKSON:  That document, if I could take

10             Your Honours to it, as its concluding paragraph

indicates is not in substitution for but rather in

addition to our written submissions which are entitled the respondents' submissions, the earlier made and, of course, the oral submissions which we made earlier.

15  

Your Honours, the course which, subject to the

Court, we would propose to adopt today is to go through

the new document, as it were, indicating the nature of
the submissions being made and drawing attention on the

20             way to a number of particular matters and,

Your Honours, in that regard could I take Your Honours

first to paragraph one at the first page of the

document which sets out the broad proposition which we

seek to support, and the matters which are set out in

1. paragraphs 2 and 3 are matters which have already been

the subject of our oral submissions.	Could I go then
to paragraph 4 at the top of page 2.	I go to it,

Your Honours, because the argument on behalf of the

appellants and, if I may say so, a little surprisingly

1. perhaps on behalf of the interveners seeks to suggest that no element of implied coersion was involved.

   Your Honours, we would invite, indeed ask

Your Honours, to look at the references which have been

1. given in that regard in our written submissions and in

   the respondents' submissions, I should say, and in

particular to places referred to in paragraph 4. In

paragraphs 5 to 10 we set out what, in our submission,

is the underlying situation, and we would also ask the

1. Court to note, if we might say so particularly, the position set out in paragraph 10. There seems to be a missing paragraph 11 in the copy which I have, but I

   suspect that is just a matter of numbers.

2. Following paragraph 12 there are set out some

   considerations in favour of the existence of some tort

   of the nature in question, and we have already dealt

   orally with the propositions in paragraphs 13, 14 and

Mengel(2) 183 6/9/94

15; 16 to 18 and paragraphs 19 and 20. In relation to

paragraph 21, and this is a matter which was not

mentioned earlier, could we just make the submission

that in the case of moneys paid in under compulsion of

1. various kinds the remedies, in our submission, do go

   beyond simply the recovery of those moneys, and we give

   Your Honours some references in that regard.

   Could I refer Your Honours particularly to what is

2. set out in the last couple of sentences in paragraph 21

   and that is what Lord Scarman said in Universal

   TankShips:

   "the law regards the threat of unlawful action as

3. illegitimate whatever be the exact nature of the

   demand."

   BRENNAN J: 'Was any claim in duress as a tort made in

   the action?

20

MR JACKSON:  In this case?

BRENNAN J: Yes.

25 MR JACKSON: Yes, Your Honour.

BRENNAN J:  What was its fate?

MR JACKSON: It was found against us.

30

BRENNAN J:  Then what is the significance of the

Universal Tankships case?

MR JACKSON:  Your Honour, really to support, in our

1. submission, the broad proposition set out in

paragraph 21.  What I was seeking to say was this:

that if one is talking about cases, say, of duress,

then it is obvious that there may be damages available

in the appropriate case. All I am seeking to do,

40             Your Honours, is to say that in a range of cases in

which the question is: what relief may be obtained in

circumstances where there has been some form of - I use

the word "compulsion" loosely, Your Honour - action
going beyond power or beyond the appropriate course of

1. action which should be taken as in the case of duress,

   a variety of remedies is available. That is all I am

   seeking to do.

Mengel(2) 184 6/9/94

BRENNAN J:  Can I just delay you a moment longer. Was

there any finding of fact - - -

MR JACKSON:  I am sorry, Your Honour, could I say - it

5             was in error, duress was not claimed as a cause of action.

BRENNAN J: It was not?

1. MR JACKSON: It was not. It was my mistake,

   Your Honour.

   BRENNAN J: If this case is going to be put as, in

   fact, a case of duress, at least in another guise -

15  

MR JACKSON:  I am sorry, I did not hear- - -

BRENNAN J:' If this case is going to be argued, as in substance a case of a tort of duress but dressed in

1. another guise, and duress has never been pleaded, then is it appropriate to allow the other guise to be

   adopted?

MR JACKSON:  Well, Your Honour, we are not adopting the
25	other guise, if I can put it that way. What we are

seeking to say is this, that we rely upon the several

causes of action in respect of which there either was a
finding in our favour or in respect of which, in the

case of the cause of action that commended itself if I

1. can use that phrase to Mr Justice Priestley, that in

   respect of that, then all those were available to us. Your Honour, in relation for example to that cause of action, the last to which I have referred, the point

   which we seek to make in relation to it is that what

2. His Honour relied upon was the combination of ultra

   vires action, on the one hand, with, in the particular

   circumstances, the implied threat - if I can use that

word - of a seizure for example of the goods. Now,

that is the only sense in which I am seeking to use the

1. expression "duress".

   Now, what I was seeking to say Your Honour was this,

   that if one goes back to the proposition which we set

   out in paragraph 12 of our written submissions and also

2. the proposition in paragraph 1, and that is the

   submission that Your Honours have now, that what we

   would say is that the type of relief that is sought,

   the class of case that in respect of which relief is

Mengel(2) 185 6/9/94

sought, does not differ very significantly from the

classes of case in which, (a), relief has been granted

and from the types of relief, (b), that have been

granted in respect of such classes of case.

5

Your Honours, in answer to Your Honour

Justice Brennan I have to say one more thing, the

fourth cause of action, of course, is in relation to

the question of misfeasance in public office and that

1. is the other cause of action upon which we rely.

   So, Your Honours, all we are seeking to do is to

   draw together the strands in this part of the argument
   and, in particular, if Your Honours look at

2. paragraph 19, if I might say so, of our most recent submissions, if one has a situation - and this is the

starting proposition for the particular reference - if
money paid as a result of a threatened seizure of goods

is recoverable and if, Your Honours, it be the case, as

1. Your Honours will see in the middle of that paragraph, that a threat to seize is treated as equivalent to

actual seizure, that the point that we are really
seeking to make, Your Honours, in the next paragraph

and paragraph 21, is that recovery of the money, in a

1. case like that, is not, in our submission, the only

   form of relief that is available and, Your Honours, we

   seek to get a by analogy to the present case.

   Your Honours, paragraphs 22 to 25 are matters with

30 which we have dealt with already. If I could move to

paragraphs 26 and following, dealing with the

Beaudesert case. We there seek to elaborate upon the

thesis of our submissions that Beaudesert remedies are

available where there is a contravention of rights. As

1. we point out in paragraph 27, it is true of course that the Court in Beaudesert did not use the words "in

   contravention of rights" but that, in our submission,

   is in fact what the Court was talking about. We look

   at the way, in paragraph 27, in which the Court stated

2. the issue and then we proceed to deal in paragraphs 28

and following with that proposition. In paragraph 29

we commence dealing with the facts of the case. That

goes through, Your Honours, in paragraphs 28, 29, 30,

31, 32, 33 and 34.

45  

If I could direct Your Honours' attention

particularly to paragraph 33, the Council in removing the gravel was doing something it had no right to do,

Mengel(2) 186 6/9/94

and the particular way in which the issue was expressed

in the Court's reasons was in terms of the lack of

authority or, as we would put it, right of the Council

to deal with that. We give Your Honours the passage at

5           pages 149 and 150 in which the essence of the case is

discussed. What we would submit is what is set out in

paragraph 34, that by doing something it was not
allowed to do, the Council prevented Smith from doing
something that he was allowed to do. It, in other

10 words, was interference with his right. Could we refer

Your Honours particularly to what we have set out in

paragraph 36(b) at the bottom of the page. There was

not a question of balancing of rights; there was no
right of the Council's to balance against Smith's

1. right.

   Your Honours, in paragraph 37 we refer to the several cases that were the basis on which the

Beaudesert principle was developed. What we would

1. submit is that each of those was dealing with a right.

   True it is that in I think two of the cases the right was a fairly general one such as the right to conduct a business in Garret v Taylor and the right to trade in

   Tarleton v McGawley but, Your Honours, it is plain

2. enough that that is what was contemplated by the Court.

   Your Honours, in the following paragraphs which

   deal with Beaudesert, and in particular in

   paragraph 39, we set out the way in which we would seek

3. to make the Beaudesert principle applicable to the

   present case and, in particular, if I could refer to

the bottom of page 10, to paragraph 39(g) where we say
if one goes back to the passage in Keeble v

Hickeringill quoted in Beaudesert, at page 153 - if I

1. could take Your Honours to Beaudesert, 120 CLR, for

   just a moment, at page 155, Your Honours will see there

   is a quotation in the middle of the page from Keeble v

   Hickeringill and what Your Honours will see two-thirds of the way through the quotation is a sentence

40             commencing, "But suppose Mr Hickeringill should lie in

the way", et cetera. Then, following that, another

example: 

A man hath a market, to which he hath toll for

45 horses sold: a man is bringing his horse to

market to sell: a stranger hinders and obstructs him from going thither to market: an action lies,

because it imports damage. Action upon the case -

Mengel(2) 187 6/9/94

et cetera. What we would submit in relation to that

is, as we put at the top of page 11, why should not
both the persons - to use the terms of that case - who

1. "hath a market" and the man who was "bringing his horse

   to market" not have the action against the stranger who

   hinders and obstructs him from going "thither to

   market".

10 TOOHEY J: Mr Jackson, you identify the right in

paragraph 39(a) as one to deal clearly with the cattle

subject to any lawful restrictions.

MR JACKSON:  Yes.

15

TOOHEY J:	Does that include a possible risk to other
cattle owners in the area?	I put it that way because,

although you speak of the common law, what I have in

mind might be something a little broader than that.

20

MR JACKSON:  Your Honour, if what Your Honour is

talking about is the possibility of there being a

danger to other persons, for example, by leading and

having infected cattle being moved then, Your Honour, I

1. would say two things about that: the first is that what we have set out in paragraph 39(a) in terms of

   lawful restriction is intended, I think it right to

say, to contemplate statutory prohibitions. However,

in relation to what Your Honour has put to me, no doubt

1. there would be a qualification upon the ability to deal

   freely with cattle where, for example, to take them

   through a place might be likely to cause infection, in

   much the same way as there is a limitation upon the

ability of someone suffering from a contagious disease
35	to walk freely through a crowded area. I suppose,

Your Honour, that puts it in a kind of blunt way but I

am sure Your Honour will understand what I am seeking

to put. But what I would say further Your Honour is

this, that in the particular case, of course, this was

1. not a case where in fact the animals had the disease

and nor did anyone think they actually had the disease,
and it is thought to be highly unlikely that they
would.

45   So that, Your Honour, one can understand that

there might be circumstances in which one of the duties
to ones neighbours would bring about a situation where

the right would be qualified in the manner Your Honour

Mengel(2) 188 6/9/94

has expressed but that is, in a sense, why the

existence of such a qualification, whilst theoretically available, is not, with respect, germane in the present case.

5

TOOHEY	J: It is crucial to your argument that the
right	be identified in such a way that it can give rise
to an	interference on the part of the respondent, is it
not?

10

MR JACKSON:  Yes. I suppose the answer is yes,

Your Honour, yes.

TOOHEY J: Perhaps that is a self-evident proposition.

15

MR JACKSON:  Yes. Could I just summarize, in effect,

what right we had. We had an unrestricted right to

move the cattle off the properties for the purpose of

sale to market and an unrestricted right to move and

1. sell them anywhere in the Northern Territory and in

Queensland. It was only if we wanted to move them to

some other places in Australia that a further test was

required. Could I give Your Honours the reference

where that might be found? It is at page 289, lines 40

25 to 60. The finding, of course, was that it was highly

unlikely that the animals did have brucellosis. That

is at page 43, line 60.

Following the passage to which I have referred at

1. page 11 of our submissions, we then go on to deal in

   paragraphs 43 and following with some submissions made

on behalf of the Commonwealth intervening. I said

earlier at the start of my submissions, I think, this

morning that in some respects some of the interveners'

1. arguments sought to challenge, in effect, findings of

fact made at the trial. We refer to that in

paragraph 44. Could I go on then to take Your Honours

to paragraph 46 of our written submissions and the
scheme we have adopted is to set out the essence of the

1. proposition in the submissions and then to make a

   comment about it.

   Could I just draw Your Honours' attention to

   paragraph 47, which deals with paragraph 15 of the

2. submissions on behalf of the Commonwealth, which is

   just a little bit above it on the same page. If that

   submission were accepted there would not be a tort of

   trespass to land, one would think.

Mengel(2) 189 6/9/94

Your Honours, in paragraph 49 we deal with the proposition that is contained in paragraph 17 of the

Commonwealth's submissions which is quoted at the top

1. of page 14, and that is that where there is:

   imposition of liability in cases of fault is

   supported by a 'general public sentiment of moral

   wrongdoing -

10

and so on. In paragraph 49(b) we would say that such a

sentiment applies in a case such as the present.

Your Honours, could I go then to paragraph 52.

1. This deals with an issue which seems to recur in the

   submissions on behalf of the interveners, namely that

   the conduct of the appellants could not be treated as

   giving rise to any kind of threat or intimation of

   possible seizure. In that regard, Your Honours will

2. see in the Woolwich Building Society case, (1993) AC,

   at page 165C, in summarising what was to that point,

the law on the topic there being dealt with, Lord Goff
says:

1. (d) In cases of compulsion, a threat which

   constitutes the compulsion may be expressed or

   implied, a point perhaps overlooked -

   and so on.

30

Your Honours, we would refer also to appendix Fl

to our original submissions in which the evidence

dealing with this question and the view taken by

Mr Justice Priestley is set out at considerable length.

1. That is at pages 49 to 54 of our written submissions.

   Could I refer also to pages 16 to 18 of those

   submissions.

   Your Honours, at the end of paragraph 57, we refer

2. Your Honours to the recent decision of the New Zealand

Court of Appeal in Simpson v Attorney-General and Anor.
Your Honours will have a copy of that decision, I

understand. That is a decision based on a provision

of, in effect, the Bill of Rights provisions of that

1. nation, the Bill of Rights not being entrenched but

being another statute. I will come a little later to

it but may I just say this, that Your Honours will see

referred to in that, with apparent approval, the

Mengel(2) 190 6/9/94

general proposition which is in Ashby v White, namely

that, in effect, if there is a wrong then there should

be a remedy. Your Honours, I am putting that a little

inexactly but Your Honours will see that referred to in

5          that case in Mr Justice McKay at page 6, Mr Justice Hardie Boys at page 11 and Mr Justice Gault

at pages 16, 20 and 21.

Your Honours, in section C which commences at

1. page 17, we deal with submissions concerning

Mr Justice Priestley's possible cause of action. The

principal matter which is dealt with there commences at

the top of page 18, and that is the submissions made on behalf of South Australia which seek to identify the
15	possible elements of the relevant tort. So far as that

is concerned, I do not think I need to add to the

written submissions, except to say perhaps at

paragraphs 73, 74 and 76 on page 21 that there are

significant reasons for not providing for the element

1. referred to in paragraph 71 as suggested by South Australia, namely that there should be knowledge

of all the facts necessary to reach the conclusion that
the threat be unnecessary.

1. It is suggested, Your Honours, in paragraph 81

   that there should be a defence of justification and we

   would seek particularly to make the point that - it is

   set out in paragraphs 83 and 84 - it is always

   possible, even in the cases of trespass to the person,

2. trespass to land, to show a socially worthwhile reason

   for the tort, but defences of that kind do not exist.

   Your Honours, turning then to section D page 24,

submissions in relation to misfeasance in public

1. office, the issue was, as Your Honours will recall, in

   relation to that question, comes down to the question whether constructive knowledge is sufficient, and the point we come to particularly is the point that in the

   end if one goes to recent English decisions such as

2. Calveley v Chief Constable of Merseyside (1989)

   1 AC 1228 which is referred to in paragraph 99 of our

   written submissions, Your Honours will see that the

issue there remains open. The relevant passage at

1240D is quoted in paragraph 99 where Lord Bridge said:

45  

" ... an act done in ..... bad faith or (possibly)

without reasonable cause."

Mengel(2) 191 6/9/94

was sufficient to give rise to the tort. So that,

Your Honours, it cannot be regarded as closed by any of

the earlier decisions.

5 In relation to the further cause of action - and

that dealt with the rule of law, Mr Justice Angel's

cause of action, as it were. Your Honours will see

that dealt with at pages 32 and following. We would

draw attention, if we may, to the quotation at the top

1. of page 33 from paragraph 2 of the New South Wales

   submissions saying:

   that the rule of law is an assumption behind the
   Constitution as distinct from a constitutional

2. principle.

   Your Honours, so far, at the very least, as the

   Territories are concerned all the laws in respect of

   the Territories have to be made pursuant to

3. section 122, it has to be a government of laws, and the

terms of the Constitution contemplate, in our
submission, if one looks at, for example, covering

clause 5, that what will be done by the Commonwealth
will be by way of laws not by way of arbitrary action

1. and things such as. Speaking more generally,

   section 5l(xxxi) relation to the acquisition of

   property reflect that.

   Your Honours, all we are seeking to say is that

2. underlying the propositions in relation to at least the

   position of the Commonwealth is that one is talking

   about a place governed by a rule of law.

Your Honours, if I could go finally to

1. paragraphs 115, 116 and 117. First of all in relation

   to paragraph 115, the question of automatic recompense

   for ultra vires action is urged against us by New South

   Wales but, Your Honours, apart from the matters to which we referred in paragraph 14, governments of

2. course have the ability to legislate to protect

themselves against that. Your Honours, in relation to

paragraph 116, we would draw attention to the matters which we set out in paragraph 117, namely, that there

is nothing unusual about having to draw a distinction

1. between conduct which is intra vires or conduct which

   is ultra vires, conduct which is lawful or conduct

   which is unlawful and, Your Honours, we would refer

   Your Honours the other matters there set out.

Mengel(2) 192 6/9/94

Could we say finally, Your Honours, that in

relation to the New Zealand case to which I referred a

moment ago, Your Honours will see in paragraphs 119 and

5             120 we refer to the various passages at which the

development of the remedy in that case is there
discussed, may we say Your Honours that whilst that

case depends upon the particular law of New Zealand, nothing in the passages to which we have referred is

1. against the propositions we have advanced and the underlying theory of the case, in our submission,

   supports the contention of there being some such tort.

MASON CJ:  Thank you, Mr Jackson. Mr Solicitor. We

1. have your preliminary reply.

MR PAULING:  Thank you, Your Honour. May I first of

all inquire whether the Court has the copy of the

extracts from Smiths' 'Leading Cases' concerning

1. Ashby v White.

MASON CJ:  Yes, we have that.

MR PAULING:  Your Honours, I particularly seek to draw

1. attention, and the reason I have had that copied and

   forwarded to the Court, concerns the fact that

   Lord Holt's judgment in that case was revised by

His Honour the Chief Justice. The passages commence at

page 327, which sets out the controversy that followed

1. the Court's intervention in Ashby v White and at

   page 328, with a side margin:

   Fraud and malice averred in principal case.

Revised edition of Lord Holt's judgment.

35

It is set out there:

It will be observed that the declaration in

Ashby v White charged the defendants with fraud

40 and malice. Of this, according to the text,

Lord Holt took no notice. But in a revised form

of his judgment, which he prepared himself, he

observed that, according to the very words of the

Statute of Westminster.the action lay, because

1. fraud and malice were alleged in the declaration,

   and had been proved -

Mengel(2) 193 6/9/94

and then right down at the bottom of the paragraph

there, and I draw attention to that as qualifying the

basis on which the respondents have sought to use
Ashby v White and Brasyer v MacLean as being two

1. examples of liability resulting from failure to perform

   a public duty.

Your Honours, as to the other matters, I am

content if the Court is to, in the short term, deliver

1. a fairly brief written submissions by way of reply or,

if·the Court would be usefully assisted, I could use
the next 10 minutes to deal with some particular

topics.

15 MASON CJ:  Yes, well, you can develop your argument in

the next 10 minutes, Mr Solicitor.

MR PAULING:  Thank you, Your Honour. The first topic

we would take Your Honours to is the concept of

20 contravention of rights and we would say this: that

the proposition is put that "unlawful" in the relying, as appears from the last occasion we were

here, on what Justice Hanger at first instance stated,

1. that the plaintiff in that case had rights which were

   contravened.

   We would draw attention to the fact that the

   development of the argument in our learned friend's

2. additional submissions suggests that by the action of

   removing the gravel in the end, the pump was rendered

useless but, really ,the proper characterisation of it is that the fact that there being no water there the
pump might have been capable of working perfectly, but
35	there was simply nothing to pump. We say that the way

in which the particular right is identified in the

argument there does not follow from the facts of

Beaudesert and is not in any sense relevant here. We

will put that in the references in our written point.

40  

We say that in relation to the rights claimed

here, that is, the right to move them from place to

place and to sell them, that there were a large number

of constraints not alone being the market constraint on

1. cattle by reason of the fact that there was a reactor in the herd, the duty of care owed to neighbours in the

   event that cattle being trucked were to escape or

Mengel(2) 194 6/9/94

otherwise cause the status of another herd to be

changed and cause somebody else loss - - -

BRENNAN J:  How does that arise, that duty to

5 neighbours? What is the problem there if the fact was

that the cattle were not brucellosis infected?

MR PAULING:  The problem was that there was a risk, a

real and substantial risk - - -

10

BRENNAN J: There was not, in the result - it may have

been thought that there was, but there was not.

MR PAULING:  No, but he had assumed that cattle that

1. had reacted, or a part of the herd that had reactors in

   it, had been trucked through a neighbouring property

and had escaped so they had intermingled with a
neighbour's herd, then you have a situation where,

until that herd is cleared, there are restrictions in

1. relation to the way in which that herd can be dealt

   with. Until it was established that the cattle that

   had got away and had intermingled were, in fact, clear,

   you would have to start testing the neighbour's herd.

   Even though animals that were taken for culture from

2. the subject property, the first property, later proved

   not to have brucellosis, the other cattle would still

   be in a situation where the herd would have to be

   rendered suspect and go through a testing process. That is not without huge expense and problems, the

3. whole mustering of thousands of heads of cattle and testing and so on. That is what we are saying.

BRENNAN J:  Why would the other herd have had to

subject itself to that? Under what provisions?

35  

MR PAULING:  Because the existence of reactor cattle in

part of the herd that was being trucked would be such

that, and I do not want to - - -

40 BRENNAN J:  But you are saying that if some of those

escaped, which is one hypothesis by itself, but

assuming that they did, that any herd into which they

escaped would then be subject to some statutory

limitation of movement?

45  

MR PAULING:  Yes.

BRENNAN J:  By reason of what provision?

Mengel(2)  195  6/9/94 

MR PAULING:  I have to look into the particular

provision in the judgment. It follows that any herd

that has come into contact with stock from a suspect

1. herd itself becomes suspect.

BRENNAN J:  From a herd that is categorised as suspect.

MR PAULING:  Yes, Your Honour. This herd at that stage

1. was.

   BRENNAN J: That is,categorised under the statute as

   suspect?

15 MR PAULING:  This herd was administratively classified

as suspect, as it turned out, because the gazette did

not apply. Because of the absence of an approved

program, that step was not available but it was not

known at that time. What I am positing is this: that

1. if a neighbour to the north heard that they were going

   to truck cattle through their property - the Stuart

   Highway runs through their property - and he was

   concerned as, I might say, not infrequently happens,

   there may be some accident involving the cattle trucks

2. and there may be escape, that he could go to court and

say "I want the court to grant me an injunction
preventing them from moving the cattle through my place
because the consequences of even one beast escaping are

disastrous". It may turn out that some of the cattle

1. do have brucellosis - very unlikely - - -

   BRENNAN J: It may turn out that the locks on the

   trailers are safe too.

35 MR PAULING: It may do, Your Honour, there may be

precautions that can be taken. All I am saying is that

if one is positing the proposition that you have got

herds of cattle that might potentially become

unsaleable, at least for a time, because of the escape

1. of these cattle that there were duties owed to one's

   neighbours.

   BRENNAN J: If the duties were breached and damage

   followed, then there would be a cause of action.

45  

MR PAULING:  Yes.

Mengel(2)  196  6/9/94 

BRENNAN J:	But absent damage, there is no cause of
action.
MR PAULING:	No, but there may well be a right to an

5 injunction. We are suggesting that there were

interests over and above simply those passing between

the Crown and the particular pastoralists who are the

respondents in this case. There was a wider community

that had an interest in this. That is how we come to

1. the question of rights. That it is not a question of

   saying, "Oh well, the government had no rights because

   it was not authorised by law to do what it was doing,

   and in any event there would not be any balancing".

   But there is a balancing between other people having a

2. right to have their herds secure and kept away from

   possibly infected cattle.

TOOHEY J:  You are not trying to identify the

government's rights at this point, you are trying to

1. identify the respondents' rights, the interference with

   which might give rise to a cause of action.

MR PAULING:  Yes. We are saying that it is not right

to blandly say there was a right to trade with whom

1. ever and when ever they wished in respect of cattle.

   We say that the right was to deal freely with cattle

   which were not potentially infected. These people were

   in a market where it has now been qualified that, all

   right, you could trade into the Northern Territory and

2. to Queensland but not elsewhere unless you had further

   testing. This is a case where, because they wanted to
   trade into South Australia they had organised further
   testing. It was the fact of the reactor that caused

the train of events to go on.

35  

Could I just then deal briefly with the issue of

misfeasance. In response to a question raised by

Your Honour Justice Deane with respect to negligence

the respondents say that the issue is raised in their

1. contention that a species of misfeasance is constituted

by constructive knowledge. And we submit in this

regard the Court should reject the respondents'

submission of a tort of misfeasance be extended to

provide liability on the basis of constructive

1. knowledge because it is not supported, we say, by any

authority and there is vast legal and policy
implications would make such an expanse untenable.

Mengel(2) 197 6/9/94

Now the tort of misfeasance is aimed at protecting

individuals from the deliberate abuse of power by

public officers that is, and one can contrast honest

but mistaken misapplication of powers. We would refer

1. the Court, and we will in our brief written submissions, to Balkin and Davis, Law of Torts at 780

   which traces that history, and it is only when one gets

   to Farrington v Thomson that there is a clear and

   explicit statement that there are alternatives, and

2. that is malice or knowledge of lack of power, and we

   will be referring to the fact that in our submission,

   the test that our opponents put forward is an objective

   test and we say that the only proper test in a case of

   misfeasance requires upon the state of mind of the

3. officer at the time he did what he did that is

   impugned.

   Your H6nours, we will deal with the way in which

   particular cases are relied upon, for example,

4. Tampion v Anderson in Pemberton and in our submission,

our opponents' additional submissions in so far as they
suggest that the question of constructive knowledge is
left open, we say that when properly analysed those
passages do not even contemplate it.

25  

Could I finally deal I think, Your Honour, with

Your Honour Justice Deane, in respect of the matter of

negligence. I have given some thought to what I

thought Your Honour was saying. Perhaps if I can

1. approach it this way: as I understand the general

   proposition, in Burnie Port Authority v General Jones

   Pty Ltd the Court was looking at the question of whether there was a non-delegable duty of care in

respect of an independent contractor doing the work

1. that was being done in that case and the majority there referred back to Kandis v State Transport Authority, a

   judgment of Justice Mason as he then was, in which

   Your Honours Justice Brennan and Deane agreed.

2. My understanding of the proposition there is that

   there, are from time to time, certain special

   relationships that might give rise to a different

   level, if you like, or a more stringent duty and that

   is a duty to ensure that reasonable care is taken and

3. as I read the transcript of what passed between

   Your Honour and myself on the last occasion, I think

   that is the distinction that was being drawn.

Mengel(2) 198 6/9/94

That is that departure from the basic principles

of liability and negligence by substituting for the

duty to take reasonable care, a more stringent duty, a

duty to ensure that reasonable care is taken. But when

5            one looks then to the type of relationships discussed in Kandis as for example, the relationship between a

hospital and a patient or a school authority and a
principal and compares it with the business

arrangements here, we are talking about a multi-million

1. dollar business and a stock inspector is an officer of

   the government.

   We also look to what was said in Kandis about

   special dependence or vulnerability. With respect, the

2. relationship between the parties in this case cannot in

   those circumstances by analogy or otherwise, we say,

   give rise to a more stringent duty, that the duty here

   was a duty to take reasonable care, that the findings

   are only consistent with that duty having been

3. discharged or at least that there was no proof that

   they were in breach of such a duty, and that therefore

   it follows that one cannot develop in a sort of general

sense, a motion of negligence on the part of the
government without it being able to ascribe to

1. particular officers some activity which, on the

ordinary principles of negligence, was in fact
negligent.

Those are the matters I wanted to put orally,

30             Your Honour, and we will in short term put in written

submission that pick up the particular references and

pages and cases.

MASON CJ:  The expression you use is "short term".

35             What is that intended to signify precisely?

MR PAULING: All of those involved on our side,

Your Honour, want to be ended with this case by the end

of the week, and I am happy to bind myself to that

1. timetable.

MASON CJ:  I notice at the end of your preliminary

submissions you suggest 14 days.

45	MR PAULING:  Yes, I do not need that.
Mengel(2)  199 6/9/94

MASON CJ:  Yes, I would have thought that if you can

get your submissions in within 7 days that would be

satisfactory.

5	MR PAULING:	Yes, Your Honour, I am more than happy
with that.

MASON CJ: Very well.

10 MR PAULING: May it please the Court.

MASON CJ:	Thank you, Mr Solicitor.
MR JACKSON:	Your Honours, may I have leave to say one

15

thing in response to my learned friend who discussed on. In the ordinary course of events, an undertaking

as to damages would have to be given by the person

seeking an interlocutory injunction.

20  

MASON CJ:  The Court will consider its decision in this

matter.

25  

AT 11.06 AM THE MATTER WAS ADJOURNED SINE DIE

Mengel(2) 200 6/9/94