Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority t-as Seqwater & Ors

[2022] HCATrans 61

[2022] HCATrans 061

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S165 of 2021

B e t w e e n -

RODRIGUEZ & SONS PTY LTD (ACN 108 770 681)

Applicant

and

QUEENSLAND BULK WATER SUPPLY AUTHORITY T/AS SEQWATER

First Respondent

SUNWATER LTD (ACN 131 034 985)

Second Respondent

STATE OF QUEENSLAND

Third Respondent

Application for special leave to appeal

KEANE J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON TUESDAY, 12 APRIL 2022, AT 9.30 AM

Copyright in the High Court of Australia

____________________

KEANE J:   In accordance with the Court’s protocol when sitting remotely, I will announce the appearances for the parties.

MR J.T. GLEESON, SC appears with MR N.J. OWENS, SC, MR R.A. YEZERSKI and MS C.G. WINNETT for the applicant.  (instructed by Maurice Blackburn Lawyers)

MR. J. STOLJAR, SC appears with MR D. KLINEBERG and MR T.O. PRINCE for the first respondent.  (instructed by King & Wood Mallesons)

MR E.J. MORZONE, QC appears for the third respondent. (instructed by Crown Law (Qld))

KEANE J:   There is a submitting appearance for the second respondent.  Yes, Mr Gleeson.

MR GLEESON: Thank you, your Honours, and good morning. This application proposes three grounds of appeal. The first ground concerns the proper construction of section 36 of the Civil Liability Act (Qld), which is found in volume 5 at page 2086. We seek to contend that the New South Wales Court of Appeal made three errors in the construction of that provision.

The first error is that the provision, as indicated by its heading – which, under the Queensland Interpretation Act, is part of the very provision – not merely part of the Act – is limited to proceedings for breach of statutory duty. The present proceeding was one under the ordinary law of negligence and, if that point is good, section 36 was irrelevant.

The second error, we contend, is that, even in cases where section 36 may apply, it is limited to proceedings based on the alleged wrongful exercise – or failure to exercise – of a power or function of a statutory authority, that is a power or function being exercised in the capacity of a public authority. In the present case, the relevant power being exercised was the conduct of water operations which were authorised under licence and could be carried out by a public or a private body.

The third error, we contend, is that in cases where section 36 applies, the standard remains an objective standard, not one as construed by the New South Wales Court of Appeal. Your Honours, that set of questions is clearly of general application. It will determine whether the Queensland response ‑ ‑ ‑

KEANE J: Mr Gleeson, subject to hearing from Mr Stoljar, I think that it is probably sufficient to say that we recognise that the operation of section 36 and the question attending it is a matter of substantial importance. Perhaps, it might be of more assistance if you were to focus your submissions on what is said against you in relation to the ability to deal with the question in relation to section 36 and its operation, separately from the other questions you raise, and with the desirability of taking those other questions up.

MR GLEESON: Thank you, your Honour. Your Honours, our submission is that the section 36 error was central to the Court of Appeal’s conduct of its rehearing function. That can be seen in two places. Firstly, at paragraph 143 of the Court of Appeal, page 1814, the Court said that:

Because the wrong standard was applied, findings of breach of duty will need to be reconsidered.

So, the entire prism seems to be, because section 9 was not the standard, we must do the job ourselves. Secondly, in the same vein, at paragraph 380 on page 1902, the court reaffirms that, because section 36 was the standard and then, relevantly, paragraph 2(b), because one other error was found, namely, the adoption of the “no release” assumption – for those reasons, and nothing more, the consequence of these conclusions, says the Court of Appeal, is that the:

findings of breach must be set aside, unless they can be upheld on the s 36(2) standard –

So, according to the Court of Appeal – in addition to section 36 – it needed to find only one error, which was the “no release” assumption and then the section 9 case had also completely evaporated. You see that theme in one other place I might ask you to go to, which is paragraph 648, page 1992, where the court acknowledges, at about line 40:

it was a breach of that direction not to make release which would at least submerge all of the bridges and limit later damage if greater releases became necessary –

Likewise, at paragraph 650, there may have been:

a departure from the Manual, even in a serious way –

but that did not entail breach of section 36. Perhaps, it may not have entailed breach of section. So, the section 36 entry point is critical to the case. Can I then go to just one day of the three or four critical days, which was 8 January, and show ‑ ‑ ‑

STEWARD J:   Just before you do that, Mr Gleeson - is your answer to what is said in the last sentence of the first respondent’s response, namely that the application is inappropriate because the primary judge’s findings of negligence on the ordinary standard of care were overturned by the Court of Appeal on independent grounds – is it your position that that is just wrong?

MR GLEESON:   That is just wrong because, as your Honours dealt with the other day, for instance in the Tapp Case, where there is a section 9 question which arises for rehearing, it will be central for the appeal court to go through each of the exercises under section 9, identify the foreseeable risk, identify its significance, identify its probability of coming home, identify the reasonable precautions.  That has never been done by the Court of Appeal.  Instead, it has said that because it can overturn one point of construction of the manual, the entire section 9 case collapses. 

I just wanted to show your Honours to make that good in respect of one day of the three or four critical days, which is 8 January.  For this brief purpose your Honours will need volume 4 as well as volume 5.  At paragraph 142, page 1315.  The case as pleaded under section 9 identified the “substantial risk” in two ways.  Firstly, if you did not make releases in accordance with, relevantly, W4 and/or:

(ii)      at rates substantially in excess of the rate of inflow;

there would be insufficient flood storage capacity . . . to store incoming flows should further rainfall occur in accordance with, or in excess of, that forecast –

and, without that capacity there would then need to be substantial releases which would damage Brisbane.  What is recorded at 143 is the primary judge took into account the actual releases which the flood engineers were planning to make and were making during the critical days, which you will see were not greater than 1241 cubic metres per second and W1 releases – releases of that level do not flood the bridges.  So, taking into account the actual releases that were going to be made, in the long paragraph, 144, his Honour concluded, between lines 40 to 50, that by 7 January:

any rational consideration of forecasts demanded immediate and large releases -

that is, even taking into account the modest releases they were going to make.  His Honour then completed, in that paragraph, that aspect of the section 9 exercise, which was to say the risk was “foreseeable and not insignificant”. 

Then at 145 he turned to the alleged reasonable precautions.  The critical ones are b) and d).  Then at paragraph 152 he dealt with the case of breach in respect to relevantly Mr Tibaldi.  He summarised the case which had the two limbs – must operate in W4, must release more than is coming in and then, in the critical paragraph, 155, made the finding that whether you are in W3 or W4, you had to flood the bridges and, indeed, you had to make such releases as would, on a combined basis, not exceed the limit of 4,000 cubic metres per second at model.  If you did that you would not be flooding Brisbane, but you would be creating the maximum capacity in the dam should the rain fall as forecast.  That led to his Honour’s conclusion at 157, having looked at all the section 9 factors. 

Now, if one asks where did the Court of Appeal overturn that, one could start at paragraph 285 in – this is now volume 5 on page 1866.  That is the finding that it was:

not unreasonable for the flood engineers to apply section 8.4 of the Manual having regard to the water which was in fact being released –

That has flavours of section 36 about it. We challenge it. But in any event it is a finding about “do not ignore the water you are in fact releasing, that is the very small amount of water which is not flooding the bridges”.

One them comes, critically, to paragraphs 573 to 575 on page 1968, and the whole of the section 9 case has been overturned, both through the section 36 prism and by reason of these three paragraphs. The court says at 573 about line 35 the problem with the section 9 finding is it:

did not take into account the making of releases during the period of the forecasts.

It did.  I have just shown you that.  But the next sentence has the clear logical error in it.  It says:

The evidence did not establish that a reasonably competent flood engineer, taking into account release at rates and for periods assessed as necessary, must have predicted the dam level would exceed 74m.

What the court there seems to have done is given the flood engineers the benefit of the releases that a competent engineer would have made – they are the releases flooding the bridges up to the 4000 cubic metres, which, by definition, these engineers did not make.

So, the section 36 error as we would have it – the failure to accord deference to the primary judge’s evident advantages – has fed into this finding upon which the whole of the case has turned. Your Honours could see further evidence of that at paragraph 656, page 1995. Just after the earlier passage I took you to – again dealing with the same critical days – at 656 the court said the question is whether the acts were so unreasonable that no dam operator could consider them to be reasonable – that is the section 36 prism. Then the court says – perhaps most remarkably in this judgment:

First and foremost, there is no evidence of this.

Then, at 657:

It is far from clear that a court, with no real understanding of the operation of a dam . . . can supply that gap in the evidence.

So, at the end of a trial that ran for more than 100 days – your Honours know its size – because the Court of Appeal thinks section 36 is the critical prism, apparently the plaintiffs have lost on the grounds of no evidence.

STEWARD J:   Mr Gleeson, can I ask you this question which perhaps echoes the question that Justice Keane asked you earlier?  In your view, would it be possible to sever ground 1 from grounds 2 and 3 and part of 4, and take up only ground 1 and, if so, would the best relief you could possibly get be remittal to a differently constituted Court of Appeal?

MR GLEESON: Thank you, your Honour. If the Court only took ground 1, the best relief would be a remitter to a differently constituted Court of Appeal. We would urge the Court to consider taking the package of questions, for this reason. Question 2 is not merely a quibble about the facts. There is a fundamental question whether, in the rehearing function of a trial of this magnitude, deference ought to be shown – which has nowhere been shown here – but the reason it is important to combine question 3, we would argue, is that by reference to the primary judge’s findings on those three days – 7, 8 and 9 January – which are conveniently brought together in chapter 12 in the pages I took you to and around there – the Court will then have a concrete vehicle by which to show that there was error in applying section 36 as the standard and the Court will have a relatively easy

task in establishing there was no appealable error in Justice Beech‑Jones’ approach to section 36.

Your Honour, in giving that answer there is also a pragmatic consideration.  Clearly enough, the unfortunate events occurred in 2011.  If finality can be reached in this Court, it is in the interests of those property owners who have significant claims.  It is in the interests of the remaining respondents to have their liability finally determined one way or the other and the insurers behind them can act accordingly. 

We have submitted, we think, not boldly, that what would be a one‑day appeal on section 36 would be no more than a two‑day appeal on the additional matters. We have not pressed the case based on the negligence in early January, that is 2 January – even though his Honour was correct on that, in our assessment. We have not pressed that because that would raise further factual issues. We respectfully submit that confining it as we have, the case will come to be concluded in two days.

GLEESON J:   Mr Gleeson, can I clarify the scope of ground 3?  Does it resolve into four questions of fact – three questions of breach relating to each of 7, 8 and 9 January – and then a question of causation?

MR GLEESON:   It does, your Honour.  That is all there is to it, and beneath the three questions of fact is essentially the same point that the Court of Appeal has somehow given the flood engineers the benefit of the releases which the competent engineer would have made, which they, by definition, refused to make.  That common question will in fact resolve most of the fact points.  As to the causation, we have pointed out that Dr Christensen’s models, sim F and sim H, provide the answer that the primary judge so found.  So, it is basically as simple as that on those days. 

So, in terms of vehicle, we appreciate that two days is a significant time for an applicant to seek from the Court, but we submit it will allow finality to be reached given the ambitions we had at trial which we have moderated to make it manageable for this Court.  May it please the Court.  They are our submissions.

KEANE J:   Thanks, Mr Gleeson.  Yes, Mr Stoljar. 

MR STOLJAR: May it please the Court. We will address the two special leave questions in order, namely, firstly the proper construction of section 36 – and I will endeavour to address some of the points that my friend has made orally in relation to that topic, and then, secondly, whether the Court should recognise a new standard of appellate review in what the applicant styles “mega litigation”.

Coming directly to 36, we advance two propositions. The first proposition is that each of the applicant’s construction arguments on section 36 is misconceived. I have heard what your Honours have said about that topic to our friends, but I will endeavour to demonstrate to your Honours in very brief terms why we say each is misconceived such that the application, even if it did raise issues of construction that might otherwise be considered important, does not enjoy any or reasonable propositions of success.

The second proposition which we will deal with is the one that our friend spent most of his time with in oral address – namely, our proposition that, in any event, the applicant’s case on 36 has no utility. From the applicant’s point of view, success on section 36 does not mean success on the appeal. On the contrary, any appeal would fail regardless of the outcome of 36.

Now, we will develop this in a moment, but as your Honours have noted, the applicant failed in the Court of Appeal, we say on the ordinary standard of negligence, and we simply – we say, very firmly, that our friend’s proposition that the Court of Appeal has never done the section 9 exercise is simply wrong.  I am going to take your Honours to the passages which make that good.

The applicant failed in the Court of Appeal even on the ordinary standard of negligence on what are now the only relevant days – namely, 7, 8 and 9 January.  So, to achieve success, the applicant would need to challenge and overturn all of the Court of Appeal’s findings of negligence on those three days.  As your Honour Justice Gleeson, noted, there is an additional case of causation.  We say, for reasons which I will develop in a moment, the applicant’s new case on causation cannot succeed.  So, in short, even if all the questions of construction, on 36, were resolved favourably to the applicant – and we say they will not be – any appeal will still fail.

I will come to that in a moment. But, can I briefly deal with the three points that our friends contend for in relation to 36 to make good the proposition that, on any view, they do not have any or sufficient prospects of success? I can deal with them most efficiently, I think, by taking your Honours to the relevant section – which your Honours will find in volume 5 on page, 2086. Your Honours will see that section 36 is reproduced at about line 35 and your Honours will observe the heading, “Proceedings against public or other authorities based on breach of statutory duty”.

STEWARD J:   Just one moment, Mr Stoljar, have we lost Mr Gleeson?  He has disappeared from my screen.

KEANE J:   Mr Gleeson, are you there?  We have lost vision.

MR GLEESON:   Yes, I can see and hear your Honours but, otherwise…..so I am content for your Honours to…..

KEANE J:   Very well, we will continue.  Thanks, Mr Gleeson.  Yes, Mr Stoljar, go ahead.

MR STOLJAR: Thank you, your Honour. So, I was identifying the heading to section 36 on page 2086. The applicant’s contention is that the reference to statutory duty in the heading means that the section itself is confined to breaches of statutory duty. But it goes without saying, your Honours, that the language of a heading cannot override the plain terms of the section that sits above. Section 36 applies generally to a wrongful exercise of a function. A “function” is defined broadly a little further up the page in section 34, as including a power. Nowhere does the section, in its terms, confine its operation to breaches of statutory duty.

The point emerges all the more clearly if one goes to section 43 of the comparable provision in the New South Wales Act on page 2091 of the book, at about line 40. Your Honours will see that 43 deploys the identical heading, but the language of the section is materially different. It is confined in its terms to breaches of statutory duty. It precedes in time 36 of the Queensland Act and the obvious inference is that, while the Queensland legislature redeployed the heading, it elected to broaden the scope of section 36.

So, our first proposition is that the argument based on the heading is not one that our friends will succeed on.  All four judges who have examined this question below rejected the argument – the construction for which our friends contend.  While your Honours have ‑ ‑ ‑

STEWARD J:   Mr Stoljar, may I ask you a question?  Do you accept that these provisions – at least in particular the New South Wales version – are by‑products of the Ipp report?

MR STOLJAR:   Yes, your Honour.

STEWARD J:   Does the Ipp report shed any light on the issue of whether these are general provisions or confined breach of statutory duty?

MR STOLJAR:   We would say it does shed some – we have endeavoured – I think we have put something about that in our response, your Honour.  But the short point is that we say that the Ipp report is consistent with the construction for which we now contend.  It is in paragraph 13 of our outline, your Honour.

STEWARD J:   Thank you for that.

MR STOLJAR:   Now, the second proposition for which our friends contend is that the section is somehow confined to breaches of duty – and I will use their language:

directly conferred upon a public authority by statute and not enjoyed by other legal persons -

and while your Honours have the section there, your Honours will observe the obvious problem, namely that the applicant seeks to read words into the section that are simply not there. Even if they were there, the point goes nowhere ultimately because even if section 36 is confined in the manner for which our friends contend, the respondent was exercising a function directly conferred upon it by statute – namely the functions of flood prevention and flood water control – conferred upon it under the Restructuring Act – as the Court of Appeal set out in some detail.

The third point that there is some misapplication of the standard imposed by section 36 is, in our submission, one that simply does not stand. The discussion in the Court of Appeal on this topic – and I will take your Honours to it just because it illuminates to some extent the discussion about section 9 and section 36 on which our friends rely heavily in oral submissions - if your Honours go to paragraph 123 of the Court of Appeal’s judgment – which your Honours will find on page 1805 – your Honours will see the heading “Identification of standard”.

The Court of Appeal went through in quite a bit of detail – which I will not take your Honours through - the various authorities and then came at paragraph 131 to the passage on which our friends placed reliance in their written outline.  The particular passage appears at the top of 1809, and your Honours will see in the third line:

On that view, the effect of a provision such as section 36(2) is to remove from the court the power to determine what is and is not a breach of the duty of care -

Now, our friends have taken those words in isolation and put them in their written outline. What our friends do not do is then go on to look at the balance of the sentence and, indeed, the paragraph which puts that into context and makes clear that what the Court of Appeal was doing, contrary to the way our friend put his submissions orally, was delineating with some precision the difference between the operation of section 9 and the operation of section 36(2). So, if your Honours continue through the sentence that I was taking your Honours to at the top of 1809, your Honours will see that it continues:

that is to determine what precautions a reasonable authority would have taken in the circumstance, thus limiting the court to the question of whether the step actually taken or not taken fell outside the range of choice available as a matter of law.

That reflects the view which the Court of Appeal is discussing, namely the view articulated in some of the authorities. If your Honours then come over to page 1810, your Honours will see that the Court of Appeal distinguishes quite precisely between the operation of section 9 and the operation of section 36 and then develops that at page 1812 where their Honours set out categories of what they describe as “increasing culpability”, distinguishing between (iii) on 1812 which is section 9, and (iv) which is section 36, the point being that the Court of Appeal’s analysis of the relevant standard was entirely orthodox and correct, in our respectful submission, the end consequence being that none of the construction points, in our respectful submission, have any force.

Can I then come to the points that our friends were making this morning where our friends said that the Court of Appeal had never done the section 9 exercise and we were, with respect, somewhat surprised to hear that submission being put.   Can I begin by taking your Honours to 143 on the next page or so – it is page 1814 – which is where our friends started in developing that proposition orally and our friends say that this is an example of where the Court of Appeal simply excluded any consideration of section 9 and confined itself to 36. 

Paragraph 143 makes clear that that is quite the opposite, in our respectful submission.  What the Court of Appeal is saying is, “because the wrong standard was applied” -  that is to say, the trial judge found that 36 did not apply at all “findings of breach of duty”, that is (on the ordinary standard) “need to be reconsidered”.  Then they say they first addressed “the basis on which numerous breaches of duty were found”, that is, on the ordinary standard, and then only subsequently and to a limited extent did they deal with 36.  I say to a limited extent because our friends only agitated this issue fairly late by way of a notice of contention.

But the whole structure of the judgment is that the Court of Appeal first addresses the breaches that were actually found on the ordinary standard and finds that they were all wrongly decided, or the relevant days were all wrongly decided, on the section 9 standard, and then considers what happens if one then applies the correct – separately, as a separate question – what happens if one considers the case through the prism of section 36.

Can I make good that proposition by taking your Honours to some latter parts of the judgments?  So, if your Honours come to page 1940, your Honours will – I just wanted to draw your attention to the heading, “Breaches on 6-10 January”.  Now, these are the relevant days and their Honours are dealing with particular grounds, and then it says “Overview”.  Then if your Honours – without taking your Honours through the minutiae – look at 1944, your Honours will see that there is a heading “6 January”.  So, the Court of Appeal is now dealing with the day shift on 6 January.  Their Honours in the Court of Appeal, at page 1950 have a heading, “Disposition” in relation to this ground.  If your Honours come to 519 on page 1951, your Honours will see:

that evidence did not justify a finding that a reasonably competent flood engineer determining which strategy to apply . . . must reasonably have concluded . . . In the absence of any contention that a reasonably competent flood engineer could only have predicted such a dam level . . . Seqwater’s challenge to the finding that Mr Malone was “required” to act in accordance with strategy W3 is made out. 

That is a section 9 finding, your Honours. That is entirely reflective of the language of section 9. What is being identified is the precautions that a reasonable flood engineer in the situation of Mr Malone, in this case, would have taken for the purposes of section 9. It is not a section 36 finding.

So, what the Court of Appeal is doing is saying that, even on the ordinary standard, the case fails.  That is the 6th.  Now, 1952, their Honours are dealing with 7 January and if I take your Honours just quickly to the resolution of the 7th.  It is page 1960.  Your Honours will see that at  543 their Honours say that the position, for the:

reasons given in relation to 6 January, a finding that strategy W3 was engaged assumed “no releases” were made and was not required –

Then 545, importantly:

whilst the evidence justified a finding that by the end of 7 January strategy W2 or W3 was engaged, it did not support the conclusion that a reasonably competent flood engineer . . . “must” have determined –

that.  So that, again, is pregnant with the language of denying.  Similar observations in relation to the passages on 1968 – which our friend took your Honours to this morning.  The Court of Appeal here is dealing with ground 24 and revolved it in relation to the ordinary standard.  It is only when one gets to page 1981 that there is a heading, “Rodriguez’ contention par 3” – now, that is where our friends raised in the court below the 36 standard and said, in effect, even if we are wrong about whether 36 applies, we should succeed in any event. 

The balance of the Court of Appeal’s judgment is dealing with the 36 standard, but the other passages that our friend took your Honours to, really – yes, they do address the 36 standard but that is because that is the topic the Court of Appeal was dealing with at that point.  It does not show – with the greatest respect to our friend’s submissions orally this morning – that the Court of Appeal simply omitted to have a new analysis based on section 9. 

I am conscious of the time, your Honours, so I did want to say something, in particular, about causation – having said briefly something about the findings of negligence on each of the three days.  Just picking up the point that your Honour Justice Gleeson, made about causation.  The point I wanted to emphasise there is that causation is absolutely critical and yet the applicant has not dealt with it in their written outline.  What it goes to is the fact that this is not a proper vehicle for special leave. 

The starting point is that these proceedings concern two dams – Wivenhoe and Somerset.  Somerset is situated up the Stanley River from, and feeds into, Wivenhoe.  It was a built a lot earlier in time than Wivenhoe.  The two dams were – and were required by the manual to be – operated in tandem. 

Now, as I have indicated, the Court of Appeal found that there was no negligence even on the ordinary standard on the particular days in question.  But, in particular, what has not loomed large – other than us saying it in our response – was that the Court of Appeal found there was no negligence even on the ordinary standard in the respondents’ operation of Somerset between 8 and 12 January.

The applicant’s case on causation apparently now begins at midnight on the 8th – which is comparable – reflects simulations F and H.  Over the course of those days, from the 8th to the 12th, Seqwater’s engineers opened the gates in the Somerset wall – they are known as the sluice gates.  In other words, on and from 8 January, Seqwater allowed water to flow from Somerset into Wivenhoe.

The applicant is now contending for simulations F or H, both starting at midnight on 8 January.  The thesis of each of those simulations is that more water is retained in Somerset that keeps Wivenhoe lower and that in

turn means that less water needs to be released from Wivenhoe when one comes to the 11th.  So, on each of sims F and H, the sluice gates in Somerset were closed – no water flowing from Somerset into Wivenhoe. 

As I have just indicated, the Court of Appeal held that it was permissible or, more precisely, non‑negligent for the respondent to open the Somerset sluice gates, and the applicant has not challenged any of those findings.  Indeed, the applicant does not even discuss this issue in its submissions in‑chief, nor in its reply. 

In particular, the applicant has not identified in any of its submissions any error in the reasoning of the Court of Appeal on the operation of Somerset.  Still less has it demonstrated why it should have special leave to appeal from that reasoning.  Now, absent all of those findings being overturned, neither of sims F or H could be the appropriate counterfactual non‑negligent operation of Somerset and the applicant’s case on causation must fail.  That is why we respectfully say that this is not an appropriate vehicle for special leave.

Can I say something briefly about the estimate of time that our friends have given.  We would respectfully say that there is simply – if your Honours were to grant special leave – and we say your Honours should not – and this case were to go into a full hearing, there is simply no way it could be done in two days, with respect. 

The hearing at first instance occupied some 130 days.  The hearing in the Court of Appeal was 10 days.  The gravamen of this appeal is that the Court of Appeal should have reviewed the entirety of the record at first instance.  We would respectfully say that it would be in excess of three days.  It would be going into the fourth day.  It is difficult to formulate the estimate on the run when the precise parameters have not been made clear but, if we are going to get into the weeds on this case – and it is hard to see how we could not, given what I have said – we would respectfully say it is something more like a four‑day case.

Can I say something very briefly about the special standard of appellate review that our friends have propounded.  We say it was not put below - that is why your Honours will find no discussion of it in the Court of Appeal – and it is inconsistent with Fox v Percy.  Those are our submissions, may it please the Court.

KEANE J:   Thanks, Mr Stoljar.  Mr Morzone, I take it you have no submissions to make at this point?

MR MORZONE:   That is correct, your Honour.  The proceedings as against the State, as your Honours may have read, have settled, so we have no submissions to make.

KEANE J:   Thanks, Mr Morzone.  Yes, Mr Gleeson, anything in reply?

MR GLEESON: Thank you, your Honours. The submissions you have heard on section 36, with respect, only really confirm the general importance of that question and the strong arguability of the position we seek to advance. Whether Queensland has produced a radically different result to the provisions in the other States – all of which were intended to be a complementary implementation of the Ipp report – is a fundamental question worthy of your Honours’ consideration.

As to whether the section 9 issues can be wholly severed from section 36, your Honours will have observed that Mr Stoljar chose to make no response to that paragraph 380 that I relied upon in‑chief, where the Court of Appeal told us in explicit terms that once they overturned the “no release” assumption, the section 9 case was finished. Mr Stoljar was also unable to identify any place where the Court of Appeal has comprehensively gone through the section 9 factors and addressed the way the primary judge considered them. That shows it is not an independent ground for the decision. Indeed, even in the parts that Mr Stoljar says are a pure section 9 analysis, one continually sees the section 36 ‑ ‑ ‑

KEANE J:   Mr Gleeson, I am sorry, you have frozen, and now we have lost you.  Mr Gleeson, you are muted at the moment.

MR GLEESON:   Do your Honours have me now?

KEANE J:   Yes, we do, thank you.

MR GLEESON: I am sorry, your Honour, the fault is mine. An example of the section 36 intruding into any section 9 analysis, is paragraph 341, last sentence. The third observation I would make in reply is that the short error that we asserted at paragraphs 573 to 575, has not been addressed by Mr Stoljar this morning or in his written submissions. So, what has actually gone wrong in this case is that the flood engineers have been found not to have breached duty by reason of releases which, by definition, they chose never to make. Once the section 36 error – and the deference error – are established, that will be a simple way home.

Penultimately, your Honours, in respect of causation, that matter will not disturb the Court.  We have addressed it in reply at page 2110, paragraph 17.  The short point is that, in respect to Somerset, we do not need findings of breach in respect to the operation of Somerset.  It arises

only on the counterfactual where we have the evidence of Dr Christensen and the findings based on it.

Your Honours, finally, given the critical matters raised in appeal for the property owners in Brisbane, we would ask you not to decide this special leave application on Mr Stoljar’s in terrorem basis.  The appeal can comfortably be conducted in the two days and the parties will responsibly work to that end.  May it please the Court, they are our submissions.

KEANE J:   Thanks, Mr Gleeson.  The Court will adjourn briefly to consider the course it will take in this matter. 

AT 10.14 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.24 AM:

KEANE J:   The Court does not consider that the case presents a suitable vehicle for consideration of the question of the operation of section 36 of the Act. That being the case, special leave is refused with costs.

Adjourn the Court please.

AT 10.24 AM THE MATTER WAS CONCLUDED