State of New South Wales v West & Anor

[2008] HCATrans 353

[2008] HCATrans 353

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  No C10 of 2008

B e t w e e n -

STATE OF NEW SOUTH WALES

Applicant

and

WAYNE KARL WEST

First Respondent

LESLEY ANNE WEST

Second Respondent

Summons for expedition

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 15 OCTOBER 2008, AT 9.15 AM

Copyright in the High Court of Australia

MR C.M. ERSKINE, SC:   May it please the Court, I appear with my learned friend, MR P.D.A. MALLON, for the applicant.  (instructed by Crown Solicitor (NSW))

MS J. YIK‑PAAL:   May it please the Court, I appear for the first and second respondents.  (instructed by Collaery Lawyers)

HIS HONOUR:   Mr Erskine, you move on a summons filed on 8 October?

MR ERSKINE:   Yes, your Honour.

HIS HONOUR:   You rely on an affidavit sworn by Helen Deborah Allison which was filed on the same day?

MR ERSKINE:   Yes, your Honour.

HIS HONOUR:   Have you any objection to that affidavit, Ms Yik‑Paal?

MS YIK‑PAAL:   No, your Honour.

HIS HONOUR:   You, Ms Yik‑Paal, rely on your own affidavit which was filed on 14 October 2008.  Is that right?

MS YIK‑PAAL:   That is right, your Honour.

HIS HONOUR:   I have read those affidavits and the exhibits to Ms Allison’s will bear for the record the same markings as they were assigned in the affidavit.  Do you object to any part of Ms Yik‑Paal’s ‑ ‑ ‑

MR ERSKINE:   No, your Honour.

HIS HONOUR:   I understand what you want, Mr Erskine.  I am not very sympathetic to it at the moment, I am afraid.

MR ERSKINE:   Your Honour, I should, before going any further, complete the documentary record.

HIS HONOUR:   Yes.

MR ERSKINE:   First, in preparing this, I realise that what has been left out of the material before this Court is the pleadings before the Supreme Court.  They are summarised in Justice Graham’s decision in the Court of Appeal and your Honour may have well detected a flavour of the pleadings from that, but we do have a copy of the statement of claim and of the defence to hand to your Honour. 

HIS HONOUR:   Are there any particular parts of the pleadings you want me to look at now?

MR ERSKINE:   To be honest, no, your Honour.  Justice Graham’s decision, if your Honour has had a chance to read that, in particular has reasonably succinctly summarised the claim as it currently stands, with one exception which is that his Honour seems to have understood the claim as including what I might call a Hargrave v Goldman allegation.  This is in paragraph 234(b) of his Honour’s decision.  We would analyse the statement of claim and it seems to have been, perhaps not quite common ground but certainly it was reluctantly accepted, I think, in the previous hearings that that issue of occupation and what may flow from it was actually to be the subject of the amendment to the pleadings should that ever happen. 

That aside, your Honour, the only other matters to draw to your Honour’s attention of the documentary record at this stage are to make sure that the Court has a copy of the summary of argument that was filed, I think, yesterday.

HIS HONOUR:   In support of the special leave application.

MR ERSKINE:   On the special leave application, yes.  I should indicate, your Honour, in that that in ordinary circumstances my learned friend and I were led by Mr Maconachie of Senior Counsel in Sydney and he is currently in Perth, so his name was accidentally omitted from the summary of argument but it should be on there.  There should also be, your Honour, a draft notice of appeal.

HIS HONOUR:   Yes.  The Registry has informed me that the original of the faxed version of the draft notice of appeal is to be filed today.

MR ERSKINE:   Yes, I believe that is the case, your Honour.  Your Honour, I can be reasonably succinct about this since your Honour has undoubtedly read the material.  We come seeking expedition, but it is expedition of perhaps a slightly unusual kind.  I do not come before you today with a witness who is dying or a company that is in dire straits and needs an urgent resolution of the matter otherwise it will go under.  Rather, I come before you in a case in which there is a significant issue buried in the middle of a major trial that is to take place before the Supreme Court of the Australian Capital Territory in July next year in which resolution of that matter may have a profound impact upon the way in which that trial will proceed.

Now, that by itself would probably be insufficient to warrant expedition, but there is – can I put it this way, the fortuitous coincidence that this Court has already granted special leave in a matter from Victoria – Stuart v Kirkland‑Veenstra – and as your Honour would have seen from the orders that we seek in the summons, we were respectfully suggesting to the Court that there would be benefit if the special leave application in the present case were to be listed for hearing alongside the hearing of the appeal in Kirkland, in the same way as in the Tame and Annetts decisions in this Court in, I think, 2003.  The Tame matter had already been granted special leave and the Annetts matter, the special leave application was listed for hearing to run with the Tame hearing.

The reason why we respectfully make that suggestion is that it is our submission that there are some important common features between the Kirkland matter and this matter.  They derive from two related principles.  The first is that in both cases there is an omission to act lying at the heart of two matters.  This Court has said on a number of occasions that normally no liability attaches to an omission to act, but it can attach if there is something special about the relationship between the parties.  In both the cases that special feature would appear to be their status as an emergency service – in the Victorian case the police exercising powers under the Mental Health Act, in our case a firefighting authority exercising powers under the Rural Fires Act.

That, your Honour, takes me neatly into the second common aspect of the case.  This Court has, on a number of occasions in the last 10 years or so, had to grapple with the very difficult area of the liability of public authorities and it has, on a number of occasions, laid down some general principles in relation to them.  Both Kirkland and this case, however, raise a particular type of public authority, namely, as I was saying, emergency service.  We say that what is common to the emergency services is that they respond to perils not of their own making, but they do so not relatively passively as a regulator might, that is a regulator is more concerned – I am generalising here – with the regulatory framework inside which activities take place, whereas an emergency service is, in a very real way, responding to unexpected perils of all kinds in which it must act swiftly and decisively, but it has that power of intervention, decisive intervention, which tends to distinguish them from the regulatory situation, which this Court has previously dealt with.

So that on those two common features we would respectfully suggest that there is a benefit in this Court being able, in the Kirkland hearing, to consider the wider ramifications of the principles that would be for consideration in that case, illuminated not by one emergency authority, but by two.  That, in our submission, is the reason why there would be benefit if your Honour were minded to have the special leave application in our case heard on full argument alongside Kirkland because it would enable a wider perspective to be given to the principles that will be under consideration in Kirkland.

Now, it is said against us, most notably in the most recent affidavit, that the pleadings as they currently stand are in a state of flux.  Your Honour will forgive us for being a little sceptical of what is said in the affidavit filed yesterday.  Without meaning the slightest disrespect to my learned friend, the statement that the pleadings are to be amended was first made before Justice Connolly in the Supreme Court of the Australian Capital Territory in June of last year.  A draft was provided to his Honour on the run, but nothing further was heard of that.  The statement was then repeated before the Court of Appeal and my learned friend’s affidavit helpfully sets out the references in the Court of Appeal decision to that fact.  Again, nothing has been heard of that.  Now, in a third Court, the same statement is made, the pleadings are to be amended.

But there is a more fundamental reason why we say that is perhaps not an impediment and it is this.  As we have understood the amendment, and certainly as we understood the amendment proposed before Justice Connolly, the foreshadowed amendments do not in any way take away the present basis for liability.  The present statement of claim, or its present form, asserts a liability that derives from the status of the applicant as a firefighting authority exercising its statutory powers under the Rural Fires Act and, hence, we say it throws up starkly the emergency service aspect of the liability claim.

The foreshadowed amendment, as we understand it, in substance is going to add a claim – a Hargrave v Goldman type claim which, as we understand it, derives from an assertion that the State of New South Wales is also an occupier of the land where the fire began because that land is a national park.  That is a distinct head of liability as it is in all the other pleadings in the 100 or so matters that are heading to trial in the Supreme Court of the Australian Capital Territory in July.

What that means, in our respectful submission, is this, that the issue of the liability of the State in its capacity as a firefighting authority stands as a discrete issue.  It can be deal with discretely if it is resolved in the way in which we would be urging upon the Court on argument in due course.  It would then fall away from the present case and one would think from the other cases in the Supreme Court of the Australian Capital Territory, leaving them to focus upon the separate head of liability raising distinct issues based upon occupation. 

So that, in our submission, although the pleadings would appear to be in something of a state of flux, they have been that way for 18 months and it, in our submission, for the reasons I have just said, does not stand as an impediment to this Court proceeding to hear the special leave application and, if appropriate, to grant special leave to appeal on the issue that is currently raised on the pleadings.  Your Honour, that is the essence of our submission to you this morning.

HIS HONOUR:   Yes, thank you, Mr Erskine.  Ms Yik‑Paal, you maintain your opposition to the relief claimed in the summons, I take it?

MS YIK‑PAAL:   Yes, upon the grounds stated in my affidavit affirmed yesterday.

HIS HONOUR:   Yes, very well, I need not trouble you further.

On 6 July 2007, the Supreme Court of the Australian Capital Territory, Justice Connolly, refused to strike out a statement of claim alleging that the State of New South Wales had negligently failed to undertake direct suppression activities of a small‑scale fire before it became a large‑scale fire and caused a great deal of damage.

On 5 September 2008, the Court of Appeal of the Supreme Court of the Australian Capital Territory, by majority comprising Chief Justice Higgins and Justice Penfold, Justice Graham dissenting, dismissed an appeal. 

On 3 October 2008, the defendant, the State of New South Wales, filed an application for special leave to appeal to this Court and on 8 October it filed a summons seeking an order that that application for special leave be expedited either so that special leave is granted and the appeal heard on 3 December 2008 in Melbourne or that the special leave application be dealt with after hearing full argument on that day in Melbourne. 

The significance of that day is that an appeal is listed for hearing entitled Stuart & Anor v Kirkland‑Veenstra & Anor.  In the Court of Appeal in these proceedings Chief Justice Higgins, at paragraphs 35 to 54, indicated agreement with aspects of the reasoning of the majority of the Victorian Court of Appeal in Stuart’s Case.  The present applicant contends that he erred in doing so.

The applicant’s summons proposes a timetable for the preparation of the special leave hearing concluding on 14 November 2008.  The first available day after that day for hearing special leave applications in the ordinary course is 12 December 2008.  There is no reason why the special leave application should be specially fixed for hearing on any day earlier than 3 December 2008.

The applicant moves on an affidavit sworn by Ms Allison which contends that the present proceedings – which I will call the West proceedings – are related to proceedings entitled Anderson & Ors v The Australian Capital Territory.  The Anderson proceedings are set down for hearing on 6 July 2009.  They are estimated to be likely to last up to six months.  Ms Allison contended that there is a “general rule against imposing duties of affirmative action”, that it “informs” both the Anderson and the West proceedings and that if questions relating to it are decided favourably to the applicant, the answers will resolve the West proceedings and perhaps lead to the settlement or shortening of the Anderson proceedings.

This morning Mr Erskine essentially repeated those propositions but added the following.  He submitted that there were important common features between the Stuart appeal and this matter.  In both cases there was an alleged omission to act.  Normally, no liability attaches to an omission unless there is some special feature in the relationship of the parties.  Mr Erskine pointed to a common feature in that both cases involved the conduct of emergency services; in Stuart’s Case, the police, in the present case, the firefighting services.

A further common feature is, in his submission, that each case involves the liability of public authorities, in particular, public authorities who supply emergency services and who respond to perils which are not of their own making, public authorities who have a power of decisive intervention unlike authorities operating in a merely regulatory manner.  He submits that the arguments in each case could cast light on the analysis of the other.

In criticism of the indication from the present respondent that the pleadings, that is to say, the statement of claim, are likely to be amended, Mr Erskine drew attention to the fact that in front of Justice Connolly reference had been made to that desire and a draft had been provided to him.  The proposition that the pleadings were to be amended was repeated in the Court of Appeal and was repeated again in this Court.  Mr Erskine submitted that the proposed amendments do not take away the present basis of liability, that is to say, the basis in relation to which Justice Connolly refused the strike‑out motion.

The present basis of liability rests on the status of the applicant as a firefighting authority.  Mr Erskine submitted that the proposed amendment is going to add a Hargrave v Goldman claim resting on an allegation that the State of New South Wales was occupier of the land, namely, a national park where the fire began.  Mr Erskine submitted that if the first basis of liability, that is, the firefighting authority basis of liability, is dealt with discretely and resolved in favour of the State of New South Wales it will fall away and that will have the benefit for the rest of the litigation in the Supreme Court of the Australian Capital Territory, that that litigation can concentrate on Hargrave v Goldman freed of any distraction from the firefighting authority line of liability.

The respondents oppose the application on the ground that their senior counsel and their principal solicitor are absent, that they are therefore unable to replead the statement of claim as they wish to and that the relevant lawyers will not be available on 3 December 2008.  Arguments relating to the unavailability of lawyers do not usually have much force in this Court, but they have some force when one side is trying to force the other on at quite short notice.

So far as the respondents’ arguments in opposition to the summons rest on their desire to replead, they lack attractiveness.  Without going into the rights and wrongs of the matter now, at first sight it would seem that repleading should have taken place earlier since the desire to do so was first ventilated before Justice Connolly in June 2007. 

A more forceful consideration, to my mind, is that the subject matter of the Stuart appeal, that is to say, whether the police owe a duty to prevent citizens from committing suicide in circumstances where they have a statutory power to take persons whom they suspect may commit suicide into custody, is very remote from the subject of this special leave application, as is the statutory background.  Those propositions remain true even if there may be some common legal controversies at a general level.  It is very doubtful whether the Stuart appeal and the present special leave application argued as on appeal could be heard in the two days set down for the Stuart appeal on 3 and 4 December 2008.  Whatever advantages may accrue to the Anderson proceedings from a successful appeal in relation to the present application, none is likely to accrue to the Stuart proceedings. 

In short, I disagree with Mr Erskine’s contention that light could be cast on analysis of the Stuart proceedings by simultaneously hearing the present special leave application.  There is no evidence or other material to indicate what the attitude of the parties to the Stuart appeal is to the present application, but it is very unlikely to be favourable.

In the circumstances, I do not think that the special leave application should be expedited to 3 December 2008 or at all.  Not much practical difficulty is likely to be caused to the applicant in that regard since the special leave application is unlikely to be long delayed provided the parties ready themselves promptly.  I say that because of the condition of the Court’s lists at the moment.

Many of the respondents’ arguments went to the question whether it is appropriate for special leave to be granted at all in relation to a pleading dispute.  The merits of those arguments need not be considered now.  They will be a matter for the members of this Court who hear the special leave application.  Accordingly, the summons is dismissed.

MR ERSKINE:   May it please the Court.

HIS HONOUR:   Do you ask for costs?

MS YIK‑PAAL:   Yes, I seek costs of the application.

HIS HONOUR:   Yes.  What do you say, Mr Erskine?

MR ERSKINE:   No, no comment, your Honour.

HIS HONOUR:   Yes.  I order:

1.        That the summons be dismissed.

2.        That the applicant pay the respondents’ costs of the summons.

Is there anything further?

MR ERSKINE:   No, thank you, your Honour.

HIS HONOUR:   The Court will adjourn.

AT 9.38 AM THE MATTER WAS CONCLUDED