Pacific Carriers Ltd v BNP Paribas

[2003] HCATrans 461

[2003] HCATrans 461

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S508 of 2002

B e t w e e n -

PACIFIC CARRIERS LIMITED

Applicant

and

BNP PARIBAS

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 NOVEMBER 2003, AT 9.38 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friends, MR A.W. STREET, SC and MR G.J. NELL, for the applicant.  (instructed by Norton White)

MR B.W. RAYMENT, QC:   May it please your Honours, I appear with my learned friend, MR I.E. DAVIDSON, for the respondent.  (instructed by Corrs Chambers Westgarth)

McHUGH J:   Yes, Mr Jackson.

MR JACKSON:   Your Honours, this case gives rise to an issue which can be described in a number of ways, but it is ultimately about actual authority in the agency sense. 

McHUGH J:   There are a large number of  special leave questions said to arise.  Are you pressing all of them or what is ‑ ‑ ‑

MR JACKSON:   We are, in a sense, your Honour.  That is why I said at the start that one can look at it in a number of different ways.  Ultimately, it turns on agency and all the causes of action really turn on that.  May I endeavour to describe what it is, your Honours?

McHUGH J:   Yes.

MR JACKSON:   It is this.  It is whether a principle is bound by an instrument which possesses a number of characteristics.  One is that it is an instrument which of its nature is to be given to and acted on by a party having no relationship with the party issuing the document.  Secondly, the document has on its true construction a particular legal effect.  Thirdly, the employee, executing the document on behalf of the principal issuing it, has actual authority to sign that document, but would not have had actual authority if it had been known that the courts, if I could put it that way, would put on the document the construction which has been put on it, or, if I could put that last thing more benignly towards the respondent, while the employee had authority to execute the document itself.  The authority existed only if the document had a narrower operation than was apparent on its face.

McHUGH J:   So the issue is this, if a person has authority to sign a document, but only if the document has a particular construction, does the authority extend to the true legal effect of the document?

MR JACKSON:   Yes, your Honour.  I would add to what your Honour put to me, one is talking about documents, the very nature of which is that they are to be given to other parties who are likely to act on them – other parties, not themselves, who are not likely to be or may not be concerned in the issuing of the document, personally.

CALLINAN J:   Mr Jackson, is there any question about construction of the document?  Assuming your submission is right with respect to agency, is there a construction point arguable against you?  I was not sure ‑ ‑ ‑

MR JACKSON:   In our submission not, your Honour.

McHUGH J:   The trial judge found to the contrary.  He found against you as a matter of construction.

MR JACKSON:   He did, but the Court of Appeal found in our favour.

McHUGH J:   Yes.

MR JACKSON:   The trial judge’s view was one which was no doubt possible but a trifle unusual course to adopt in the sense that the two sides put forward differing constructions altogether and he adopted a third one which was between the two and really very difficult to support.  Our submission is that the case is one where the very terms of the document indicate that it is an indemnity.

CALLINAN J:   Could you just refer me to the Court of Appeal – Justice Sheller on that, please?

MR JACKSON:   Yes, certainly, your Honour.  On that ‑ ‑ ‑

CALLINAN J:   On the construction.  Just the conclusion ‑ ‑ ‑

MR JACKSON:   Yes, your Honour.  Your Honour will see Justice Sheller at volume 2, page 411, paragraphs 70 and 71.  It is in a number of places, but I think that is the first point where he expresses a view on it.

McHUGH J:   It is at line 36 on 411, is it not, that is the critical ‑ ‑ ‑

MR JACKSON:   Yes, your Honour, 411.  His Honour refers to it later on a few other – when dealing with the negligence issue, for example.  Paragraph 69, paragraph 70 and paragraph 71, and the conclusion of paragraph 71 indicates that he is of that view.  It is also later referred to in the reasons, your Honours.

McHUGH J:   The document itself is set out in various places, but it is set out between 406 and ‑ ‑ ‑

MR JACKSON:   The actual document is at page 477, your Honour.

McHUGH J:   Yes, right at the end.  Am I right in thinking that Ms Dhiri was authorised to sign this document but only to the extent that it was an identification of NEAT’s signature?

MR JACKSON:   Yes, your Honour.

McHUGH J:   So she was authorised to sign this document?

MR JACKSON:   Your Honour, yes.  Could I put it this way, your Honour – and where one sees this is at pages 166 and 170 in the primary judge’s reasons.

CALLINAN J:   She was also issued with a stamp, Mr Jackson.  She was given a stamp.

MR JACKSON:   Yes, your Honour, and I should say that there was evidence also of the officer immediately above her, Mr Kavanagh, who had said that she had authority to – she had referred the earlier of the documents to him and he had given her authority to execute it but on the assumption that it was a document verifying the signatures of the other persons – of NEAT, of the consignor.

CALLINAN J:   You had an estoppel argument at the trial, did you not?

MR JACKSON:   Yes, your Honour.  The estoppel argument turns on exactly the same facts.  That is why I said, your Honour, the case turns ultimately on what is contained ‑ ‑ ‑

CALLINAN J:   If you are right about this, you are probably also right about estoppel.

MR JACKSON:   Yes, your Honour.  I put it on the contract basis first, really, because if we are correct on that then the goods are released.  We, in effect, move the barrel, really, in the sense of the old case, some consideration.

McHUGH J:   I understand that, but one thing that concerns me – and it is becoming a problem in this Court – is the terms of the notice of appeal.  If you look at page 450, ground 2, the ground of actual authority seems to be conditioned on:

arising out of the negligent performance of the authorised –

Now, what has that to do with your point?

MR JACKSON:   Your Honour, it blurs two concepts, I accept that.

McHUGH J:   It blurs the issue, does it not, that you are seeking to raise?

MR JACKSON:   Your Honour, it does.  If we were to obtain special leave, we would seek leave to amend the notice of appeal suitably.  Your Honour asked me before about the issues.  I think I answered too fully, your Honour.  Could I take your Honours for just a moment to our summary of argument at page 454.  Your Honours will see that paragraph 1 of that really, in a sense, covers the central issue.

McHUGH J:   That is right.

CALLINAN J:   All you need are 4, 5 and 8, do you not, in regards to ‑ ‑ ‑

MR JACKSON:   I am sorry, your Honour, I have lost the page.

CALLINAN J:   Page 451.  You would not want to abandon estoppel.  It may not raise exactly the same considerations.  I would have thought you might even have an easier case, as it were, on estoppel.

MR JACKSON:   Yes, your Honour.

McHUGH J:   Your problem about estoppel is what representation can you claim that the Bank made?

MR JACKSON:   Your Honour, the situation would be this.  One has a document – and I would call in aid what I said about Mr Kavanagh’s evidence a moment ago.  The documents, of their nature, are ones which are to go out from the Bank to other people.  That is the first thing.  The second thing is that in relation to at least the first of them you have Mr Kavanagh saying, “You may sign this document.”  He is a senior officer and the evidence would demonstrate that he had authority to authorise that.  The document goes out.  Your Honour, in those circumstances, that would be sufficient, in our submission, to amount to a representation.  Now, your Honour, that might be right, it may be wrong, in the end.

McHUGH J:   But a representation to the ‑ ‑ ‑

MR JACKSON:   A representation that there was a document issued by the – each document, as it was, that the Bank had issued to be dealt with according to its terms.

McHUGH J:   Although you press estoppel and a breach of the Trade Practices Act, section 52, you do not seem to press ostensible authority standing on its own.  Why is that, Mr Jackson?

MR JACKSON:   Your Honour, it becomes a matter of definition, in a sense.  This is why I said at the commencement of our submissions that it is something that could be described in a number of ways.  One of the things about it is this, if it be that the ostensible authority only extends to circumstances where a representation has been made by someone other than the person themselves involved in making the representation, then this would seem to be a case which is not a case of ostensible authority, if that be the right view of it.

On the other hand, it is a case which really is, in a sense, on the boundary, if there be a boundary, between actual authority and ostensible authority and it is a question of where the ultimate characterisation of it may be actual, ostensible, or neither, or something else, but it seemed more likely to be, in our submission, an aspect of actual authority.

McHUGH J:   But there has to be a representation both for ostensible authority and for estoppel, does there not?

MR JACKSON:   Yes, your Honour

McHUGH J:   So why is one relevant and the other not?

MR JACKSON:   Your Honour, I do not know that I have said that ostensible authority is not relevant.  I have said that in the end it is probably a case ultimately about actual authority, but it is in the end a question of description.  The basic facts are very simple, but in the end it is a question of characterisation that is giving rise to a cause of action or none.

CALLINAN J:   You are certainly not abandoning ostensible authority.

MR JACKSON:   No, I am not, your Honour.  Your Honours, could I say in relation to this, this is a case where the issue is of importance, in our submission.  These are documents of a kind in common use in international trade.  Your Honours can see references to that in – and I will give your Honours only two passages – Justice Sheller in paragraph 51 of his reasons which your Honours will see at ‑ ‑ ‑

CALLINAN J:   He deplored the absence of evidence of trade practices and custom ‑ ‑ ‑

MR JACKSON:   Your Honour, it is a little difficult to see.  If you have documents that have a particular construction on their face, there really is perhaps a question about the relevance of that, unless it is to take away from the apparent meaning of the documents or for some other appropriate purpose.

CALLINAN J:   How much was in issue, Mr Jackson?

MR JACKSON:   Your Honour, I think it is three point something million United States dollars plus interest.

McHUGH J:   I thought there was some reference somewhere to about $US8 million or something.

MR JACKSON:   Yes.  Your Honour, the order of the primary judge is at page 352 in volume 2.  Your Honour will see at paragraph 1 damages of – an amount at that point of $4.378 million.

McHUGH J:   It is US.

MR JACKSON:   I gave your Honours a reference to paragraph 51 of the Court of Appeal’s reasons.  Your Honours will see at the bottom of 402 and the top of 403, that the type of document is the:

1998 standard form to be given in return for delivering cargo  unloading cargo without the production of the original bill of lading –

The judge discusses some minor differences at paragraph 59 but, as your Honours will see at paragraph 61, they are of a trivial kind.  Your Honours, I was going to say about the documents that, first of all, they are of a kind in common use in international trade.  They are likely to be used all around the world and, in our submission, traders dealing with banks in Australia, or other persons issuing them, should not have to inquire whether the paper they issue has the proper internal authorisation where one sees a document which is not a forgery, a genuine document, it in fact emanates from the bank, the stamp on it is that of the bank, and they are documents where the only question about them is whether the person who issued them had, so far as the bank was concerned, authority to do so.  Your Honours, those are our submissions.

McHUGH J:   Yes.  Yes, Mr Rayment.

MR RAYMENT:   Your Honours, it is clear, we would submit, if one looks at both the trial judge’s judgment and the Court of Appeal’s judgment, that the person who signed this document only for the purposes of verification of the signatures of New England Agricultural Traders had no authority to do more than that.  She had no authority to sign the document so as to make the Bank liable on it.  Justice Hunter so found in paragraphs 292, 303 and 320 in the application book.  He found that her department was unauthorised “to issue bank guarantees or indemnities” and that she knew that.  He found that her express instructions with respect to the document were that she was to go off and verify the signature and do nothing else which would entail ‑ ‑ ‑

CALLINAN J:   Why does not the document say that, though?

MR RAYMENT:   Your Honour, because she chose to do it in the most unusual way, but the fact that she did so did not come to the notice of anyone else.  If you read the document, her signature is indecipherable.  Her office within the Bank is not stated.

CALLINAN J:   There is no doubt about the stamp, though, is there?

MR RAYMENT:   There is no doubt – well, it was a ‑ ‑ ‑

CALLINAN J:   The document does not say, does it, that she is signing it merely for the purposes of verification of NEATs signature?

MR RAYMENT:   No, she did it in, as I say, the most extraordinary way.  The stamp was a stamp that she needed to have for the purposes of verifying signatures, so she could identify herself.

CALLINAN J:   Why did not the stamp say that, that this is a stamp for the purpose of verifying signatures?

MR RAYMENT:   Quite, but she chose to deal with her authorised task in this way which could not have been seen foreseen, we would submit, by the person who gave instructions.  Could I just move a little further.  So far as actual authority is concerned to sign the document so as to make the Bank a party, there was no doubt before the trial judge, we would submit, that she did not have it.  That finding of fact was confirmed in the Court of Appeal in paragraph 78 at page 417.

McHUGH J:   Would you just remind me again, Mr Rayment, she had authority to sign the document, but were her instructions to the effect that something had to be added to the document or was it to be done orally or was it some sort of assumption that she would only be identifying it?  What was the state of the evidence on that?

MR RAYMENT:   It was very general, but she was instructed to sign the document for the purposes of verifying signatures.  I think that is correct, your Honour, but her signature would appear as a verifier as envisaged in the instructions.  I think that is right to say that.

McHUGH J:   Yes.

MR RAYMENT:   Your Honours, the state of the evidence was that she signed this document in this curious way.  So far as the other side of the transaction is concerned, no evidence was called from the present applicant that they communicated with the Bank in any way, that they believed she had any particular authority in the Bank, that they knew who he or she was who had signed it or anything of that nature.  There was no evidence of the kind that one would expect in an apparent authority case of inducement, in our respectful submission, which makes the case an unsuitable vehicle.  That was referred to, we submit, in the Court of Appeal judgment several times:  at paragraph 101 in Justice Sheller’s judgment at page 427 ‑ ‑ ‑

KIRBY J:   The weakness of the case is the failure to subscribe the particular limited purpose or to have that in the stamp or to have it in some formula of subscription that ‑ ‑ ‑

MR RAYMENT:   Yes, she should not have done it in that way, but the point is that such representation ‑ ‑ ‑

KIRBY J:   Why is somebody dealing with the Bank not entitled to just deal on the basis of the documents?  The banks are big persons.  They are dealing with a lot of money.

MR RAYMENT:   We submit that it has been clear in this Court since Crabtree‑Vickers and, indeed, it has been clear in the common law world since Freeman & Lockyer Properties that if there is to be a representation that a particular person had authority to sign a document that must be made – I am now speaking of apparent authority or ostensible authority – by a person ‑ ‑ ‑

KIRBY J:   The question is, is the stamp representation ‑ ‑ ‑

MR RAYMENT:   Your Honour, that must be made by a person, in our respectful submission, who has authority to make the representation, not a stamp but an agent.

McHUGH J:   Except that there is a second limb, is there not, in Crabtree?  Correct me if I am wrong, but did not the Court say that if the principal allows the agent to act in a position from which actual authority might be inferred, that is sufficient?

MR RAYMENT:   Yes, but, your Honour, all we did here was allow her to behave as a signature verifier.  We did not allow her to do what was done in this case, that is the point.

McHUGH J:   No, but you did authorise her to have dealings with the third party and authorise her to sign the document.

MR RAYMENT:   We authorised her merely to do a particular thing, your Honour.

McHUGH J:   But does that not raise the important point of principle as to whether or not your internal limitation on her authority to sign this particular document can affect the result of the case?

MR RAYMENT:   We do need to know some additional facts about this.

McHUGH J:   Yes.

MR RAYMENT:   First of all, there were no dealings between the Bank and the other party who relied upon it.  They were wholly communications between the customer ‑ ‑ ‑

McHUGH J:   Pacific, yes.

MR RAYMENT:   Never did an original document leave the Bank to go to the present applicant. 

McHUGH J:   That may be, but what about the Alam Tangkas case?  You concede your liability in that case and it was the identical document, was it not.

MR RAYMENT:   No, it was a different document.

McHUGH J:   I am sorry, it was not the identical document; it was the earlier edition.

MR RAYMENT:   It was years before.  It had nothing to do with this matter, with respect.  We did not know that ‑ ‑ ‑

McHUGH J:   I know it is, but the Bank signed it.  It was the same sort of approach, two signatures on it, one by the Bank.  Was that not so?

MR RAYMENT:   There was certainly an earlier document proved in evidence in the case which had nothing to do with this matter.  It was not to the other party in this case.

McHUGH J:   No, your point is that Pacific did not deal with that particular document but NEAT did.

MR RAYMENT:   Not to the knowledge of the Bank, but I think it may be that some later company may have, but it was not known to my clients in any way.  Your Honours, the only authority given to Ms Dhiri on the special facts of this case were to go off and verify signatures.  Ordinarily one would do that, as your Honour Justice Kirby said, with a stamp which would indicate some kind of limitation on the purpose for which one was doing it.  So you really had a clerk who – and it is really a clerical job, par excellence, to verify a signature ‑ ‑ ‑

CALLINAN J:   Why did not the document say that?  Why did it not say “verification purposes only”, or something?

MR RAYMENT:   The non‑disclosure that that involves was wholly the responsibility of the same person.  If the non‑disclosure was that of the Bank itself, in our submission, then one would get to first base in this case.

CALLINAN J:   I am not sure.  If you have a servant and the servant is armed with all the apparent indicia of signing a document, then why is it not right to say that anybody is entitled to assume and rely upon the fact that it is an unqualified signature by the Bank?

MR RAYMENT:   It is a very ministerial task, we would submit.

McHUGH J:   It is not ministerial.  You are pledging – I mean, on any view you are – I am sorry, you say it is ministerial in the sense because it is only identification.

MR RAYMENT:   Yes.

McHUGH J:   But it does seem strange that the Bank authorises her to sign this document but it says, “She can sign it but it is only to identify the signature of the other party” and, yet, there it is, “For and on Behalf of” the Bank.

MR RAYMENT:   She puts a…..on the document which identifies her role in the Bank.

CALLINAN J:   Mr Rayment, in effect you say she is only a witness and only authorised to be a witness to signatures.

MR RAYMENT:   Yes, exactly.

CALLINAN J:   I do not think I have ever seen a document before required to be witnessed that does not say that the signature is as a witness and not otherwise.

MR RAYMENT:   Yes, but the person who has the implied obligation to make that clear is the witness.  There was no other person.

CALLINAN J:   No, usually, the issuer of the form.

MR RAYMENT:   That was not ‑ ‑ ‑

CALLINAN J:   Your client was the issuer of the stamp and the issuer of such authority, as you say, as the clerk had.

MR RAYMENT:   The draftsman of the form was not my client.  We were asked to perform a ministerial function on someone else’s document which a clerk did in a way that went well beyond her instructions, and concedes it – by the way, concedes that she was doing no more than fulfilling her instructions, so the evidence was.

CALLINAN J:   You might turn out to be right about all of that, Mr Rayment, but I must say at the moment it seems to me that a point is raised anyway.

MR RAYMENT:   We would submit that it really is covered by prior authority, this question.  If you have a person who has no authority to sign a document, then, prima facie, it is not binding unless one falls within the doctrine enunciated in this Court in Crabtree‑Vickers and in the English Court of Appeal in Freeman & Lockyer.  We submit that one, in effect, would be bypassing entirely those well‑established doctrines if one imposed on the other party whose servant wrongly signed the document some kind of personal duty of disclosure, failing which there would be a representation by that person as to the authority of the client.  We submit that you could not spell that out of these documents.

McHUGH J:   But is there any case which deals with the question of a person being authorised to sign a document which has a particular legal effect and yet the principal not being held liable because the principal says, “The agent did not have authority to sign a document that did have that legal effect”?

KIRBY J:   And expressed itself to the world as having that legal effect.

McHUGH J:   I do not think there is and that why it does seem to me to raise a question of principle, Mr Rayment.

MR RAYMENT:   Can I just put this about it.  If one was a party, one could have – if the person was signing in such a way as that person, at any rate, thought would make his principal a party but understood the document in a certain way, at least the question might arise directly.  Here you have a case where the other side conceded that the signer had no such intention, that, in effect, any signature that would have been otherwise than as verifier was beyond her instructions.

KIRBY J:   You see, at the Bar table you look at this as winning the case and preventing the special leave, but we have to look at it in terms of the general principle and the principle would seem to argue for an obligation attaching to something which is expressed to the commercial community.  One cannot but feel some sympathy for the Bank and Ms Dhiri, but here was the form.  I have no doubt the forms have been changed, the stamp has been changed and everything has been improved, but we have to look at it in a different way to you.

MR RAYMENT:   May I just draw attention, finally, your Honours, then to several things.  The original document was at page 473 of the volume.  Your Honour Justice Callinan will see that the stamp in question is hardly such as would comfortably be said to amount to a representation and the signature is illegible ‑ ‑ ‑

KIRBY J:   It says “For and on Behalf of – BANQUE NATIONALE DE PARIS”.

MR RAYMENT:   Yes, that is quite legible.  That is quite legible, of course, your Honour, but the stamp is not.  The signature is not and the role is unindicated.  Your Honours, there is a question of construction of this document which we argued in the Court of Appeal and would argue if special leave be granted here.  In our respectful submission, this document is not, on its proper construction, a deed of indemnity in any event.

KIRBY J:   That is a notice of contention point.

MR RAYMENT:   It is.  Justice Callinan asked a question about the construction of it and we would submit a very real question arises about the proper construction of this document despite the ‑ ‑ ‑

McHUGH J:   Yes.  You have not only the word “we” but clause 6:

The liability of each and every person under this indemnity –

et cetera.

MR RAYMENT:   But at the top of page 471 you have it as coming to:

The owners of the M/V Nelson . . . 

FROM:

NEW ENGLAND AGRICULTURAL TRADERS –

not from the Bank, and the “we” that is referred to throughout is, we submit on the proper construction of this document, “we, NEAT”.

McHUGH J:   Yes, but the “we” applies to the request and once you get to the indemnity the words “NEAT” et cetera are not after the word “we”.  They stand alone after that and the Bank puts its signature and, as Justice Sheller said at 411, the document:

would fail to achieve its purpose once it is signed for and on behalf of the bank if “we” in the expression “we hereby agree” does not include the bank as a party to the agreement.

MR RAYMENT:   But reading the document from the beginning it is ‑ ‑ ‑

McHUGH J:   Anyway, if leave is granted, it is a notice of contention point.

MR RAYMENT:   Yes, it is.  Your Honours, those are our submissions.

McHUGH J:   Thank you.  Yes, Mr Jackson.

MR JACKSON:   Thank you, your Honours.  There are three points I would seek to make.  The first concerns the observation made by our learned friends that really she was signing as a witness.  If your Honours go to page 467 in volume 2, we have extracted in footnote 2 a relevant part of the Bank’s defence.  Your Honours will see that it is said:

“the first defendant admits that Ms Era Dhiri of the Sydney office counter‑signed the alleged first and second agreements…and that by her counter‑signature the bank verified –

and your Honours will see what is there.  This was a document which of its nature was to go out of the Bank and Mr Kavanagh and Ms Dhiri both knew that. 

The second thing is this, that it was said we made no inquiries from the Bank, and no doubt that is true, but your Honours will see that it was, at the same time, clear that we did rely upon the fact that the Bank had apparently executed these documents.  Could I take your Honours for a moment to volume 1 at page 193, paragraph 402.  Your Honours will see the conclusion arrived at by the primary judge.  That was based on the evidence of two witnesses on our behalf whose evidence the judge accepted at paragraph 400.  Also, your Honours will see the nature of that evidence at, for example, page 186, paragraph 391. 

Could I refer your Honours to the evidence of Mr Chua at paragraph 10 of the extracted part there at page 186.  Your Honours will see what he says there in relation to it and it sounds, if I may say so, with respect, very like the kinds of things one would expect to take place in international trade.

McHUGH J:   Northside Developments holds that the indoor management rule in Turquand’s Case does not apply in cases of ostensible authority.

MR JACKSON:   Your Honour, it seems to say that.  The indoor management rule issue arose in that case and, whilst there are perhaps shades of view expressed in relation to it, what your Honour puts to me is, I think, correct.  But, again, where this case differs from those is in the matter your Honour was putting to my learned friend a moment ago, that is that this is a case where one is not talking about an absence of authority, one is talking about authority to execute a particular document and what follows from that.  The question is, what follows from that in the light of the construction put on it by a court?

Your Honours, the last thing I wanted to refer to was at page 156, paragraph 320.  Your Honours will see that reference was made by our learned friends to what was said by Mr Kavanagh.  What appears is really that he corroborated her:

evidence of receiving his instructions to sign the first NEAT LOI only as verification of NEAT’s execution of the documents.

But he went on to say it was otherwise rather confusing.  Your Honours, those are our submissions.

McHUGH J:   Thank you, Mr Jackson. 

There will be a grant of special leave in this matter, subject to you producing an amended notice of appeal later this morning, Mr Jackson.  I think Justice Callinan pointed out to you what seemed to be the requisite grounds.

MR JACKSON:   Yes, your Honour.

McHUGH J:   Yes.  Could that be done within the next hour and half or so?

MR JACKSON:   Yes, certainly, your Honour.

McHUGH J:   Thank you, Mr Jackson.

AT 10.15 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 11.17 AM:

McHUGH J:   Mr Jackson, I understand you have prepared a draft notice of appeal.

MR JACKSON:   Yes, your Honour.  Could I give your Honours two documents, one showing the original with the handwritten amendments and the other the better engrossed, full version of it.

McHUGH J:   Yes.  Have you looked at this document, Mr Rayment?

MR RAYMENT:   We have, your Honour.  Your Honours, one, as it were, textual change was suggested by your Honour the presiding Judge during the argument and that has been made.  Subject to correction, I do not believe that any attention was directed to the negligence allegation which is in paragraph 5 of this document, which we would submit would not be within what was at any rate discussed this morning.

McHUGH J:   This is the vulnerability point.

MR RAYMENT:   It would seem to be.

MR JACKSON:   Your Honour, what we have done is really – your Honours will see the old 9 and 10.  We have put them together, as it were, in 4.  If your Honours were of the view that that is a debatable question – debatable in the sense of being appropriate for the grant of special leave – then the appropriate course, in our submission, would be for the Court to reserve the question for the hearing of the matter whether we should be permitted to deal with that issue, whether special leave should be granted on that issue.

McHUGH J:   Yes.  If you do not get a grant on that, does it affect the other ground?  It does not, does it?

MR JACKSON:   It does not affect the other ground, your Honour, but what it does do is to take away a possible cause of action arising from the same facts.  The basic facts are all ones that are found.  The trial judge has granted relief, although on a slightly different factual basis, negligence.

McHUGH J:   The trial judge held there was a duty of care, did he not, on the ground of vulnerability?

MR JACKSON:   Yes, he did, your Honour.

McHUGH J:   Yes.  Mr Rayment, I do not know that it is going to add to the case to any great extent, is it?  It is a fairly short point.

MR RAYMENT:   It may not be, with respect.

McHUGH J:   It may not be?

MR RAYMENT:   It may not be a very short point, such an issue as that.

KIRBY J:   But does it affect the amount of evidence the Court would have to look at?

MR RAYMENT:   No.

KIRBY J:   If that is so, it is merely legal categorisation on the evidence we are going to be looking at in the other connection.

MR RAYMENT:   It is.

KIRBY J:   So it is better to have it there.  We can always say there is nothing in it.

McHUGH J:   There will be a grant of special leave in respect of the matters set out in the grounds of the proposed amended notice of appeal.  The costs of preparing the amended notice of appeal ‑ ‑ ‑

KIRBY J:   Such as they would be.

McHUGH J:   ‑ ‑ ‑ are the costs of the applicant.

AT 11.22 AM THE MATTER WAS CONCLUDED